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Braslow v. Kelly

Superior Court of California, Appellate Division, Los Angeles
Jun 4, 1957
151 Cal.App.2d Supp. 852 (Cal. Super. 1957)

Opinion


151 Cal.App.2d Supp. 852 312 P.2d 432 ARTHUR I. BRASLOW, Respondent, v. E. ALLEN KELLY, Appellant. Civ. A. No. 9249. Superior Court of California, Appellate Division, Los Angeles. June 4, 1957

        COUNSEL

        N.E. Youngblood and Marvin Gross for Appellant. Paul Braslow for Respondent

         OPINION

         SWAIN, J.

         This case involves the doctrine of res judicata. "The doctrine of res judicata has a double aspect. A former judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." Todhunter v. Smith (1934), 219 Cal. 690, 695

         We must decide (1) whether the first action, Braslow v. Cabin Crafts, Inc., and Kelly, Number 311641, in the Municipal Court of Los Angeles Judicial District, was upon the same cause of action as the second one, Braslow v. Kelly, Number 5614, in the Municipal Court of Alhambra Judicial District, the action in which this appeal was taken, and if not, (2) whether there were issues in the second action which were actually litigated and determined in the first action.

         The first action was upon contract. The complaint sought to hold Cabin Crafts, Inc., for the cost of manufacturing a display cabinet claimed to have been ordered by Kelly as agent for Cabin Crafts. It also sought to hold Kelly as a principal. Denials in the answer presented two defenses: (1) That Kelly had no authority to order the cabinet for Cabin Crafts, and (2) that Kelly never ordered the cabinet. Judgment was for both defendants. The second action is against Kelly alone. It is under Civil Code, section 2342, for breach by Kelly of warranty of authority to act as agent for Cabin Crafts. Whatever definition may be used for cause of action, we are convinced that an action on a contract to recover the purchase price of goods is different from a cause of action for damages for breach of warranty of authority of an agent. In the first it is claimed that there is a contract, in the second it is claimed there is not a contract. The fact that they arose out of the same transaction and could have been joined under Code of Civil Procedure, section 427, subsection 8, is not significant because that joinder is permissive not mandatory. Sanderson v. Niemann (1941), 17 Cal.2d 563 at 571 ; Lynch v. Kemp (1935), 4 Cal.2d 440 at 442

         We, also, hold that the issues adjudicated in the first action did not estop the adjudication of issues presented in this action. It is true that in the first action Kelly denied he ordered the goods as the authorized agent of the corporation, and it is true that the same issue is raised in the second action.

         According to the settled statement, he so testified and claimed that plaintiff made the model display cabinet on his own responsibility hoping to sell a large number of them to Cabin Crafts. Difficulty is caused by the fact that there are no findings in the first action. It might have been decided on either of two theories: (1) on the theory that Kelly had no authority to order the cabinet at Cabin Crafts' expense and that he did not order it for himself as principal, or (2) on the theory that he did not order the cabinet at all. If the first case was decided on the latter theory, plaintiff would be estopped from relitigating that issue in the present action. However, the law applicable to the problem which arises when we cannot determine on which of two defenses the former action was decided is set forth in the following authorities:

         Code of Civil Procedure, section 1911: "That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto."

         Blumenthal v. Maryland Casualty Co. (1932), 119 Cal.App. 563, 566-567 : [Stating the rule] "In an action upon a different claim or demand, however, the former judgment is only conclusive as to such issues or matters as were essential to or shown to have been involved in the judgment rendered [citations]. But if upon the face of the record anything is left to conjecture as to what was necessarily involved and decided there is no estoppel [citations]; and in the absence of findings only those issues are deemed to have been adjudicated which were actually included in the judgment or necessary thereto [citations]."

         Schumacker v. Industrial Acc. Com. (1941), 46 Cal.App.2d 95, at page 99 : [Referring to Code Civ. Proc., section 1911, the court said] "A comparison shows that the rule as stated in our statute does not vary in any material respect from the rule as stated in 94 U.S. 353. That rule was further discussed by the same court in Russell v. Place, 94 U.S. 606 [24 L.Ed. 214]. On page 608 the court said: 'It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record,--as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,--the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.' "

         The judgment is affirmed.

         Bishop, P. J., and Kauffman, J., concurred.


Summaries of

Braslow v. Kelly

Superior Court of California, Appellate Division, Los Angeles
Jun 4, 1957
151 Cal.App.2d Supp. 852 (Cal. Super. 1957)
Case details for

Braslow v. Kelly

Case Details

Full title:Braslow v. Kelly

Court:Superior Court of California, Appellate Division, Los Angeles

Date published: Jun 4, 1957

Citations

151 Cal.App.2d Supp. 852 (Cal. Super. 1957)
312 P.2d 432

Citing Cases

Davies v. Krasna

(Cf. Braslow v. Kelly (1957) 151 Cal.App.2d Supp. 852 [312 P.2d 432].)…