Cavanaugh v. Buehler

Citations

• 120 Pa. 441
• 14 A. 391
• 1888 Pa. LEXIS 499

Syllabus

<p>(а) The plaintiffs at different dates in 1867, through real estate agents sold two parcels of real estate to the defendant, who, through the same agents, sold the parcels to others, the purchase money in both instances payable by instalments and handled by said agents, who in 1876, became insolvent having on their books a sum of money to the credit of the defendant.</p> <p>(б) In 1871, a deed embracing both parcels was executed and acknowledged by the plaintiffs and left with said agents, to be delivered to the defendant on full payment of the purchase money; about the time whereof one of the second vendees made a payment to the agents of $133.25, when the defendant asked the agents, “ Does this finish paying on the Russel lot?” and they replied, “Yes ; it does.”</p> <p>(o) An action in covenant was brought upon one of the contracts to recover unpaid purchase money claimed 1 hereon, in the trial of which in 1882 arose the incidental question whether said deed then offered by defendant as evidence of payment had been delivered, resulting in a verdict and judgment for the defendant. Jn a like action brought at the same time upon the other contract, but tried in 1886, held:</p> <p>1. That the evidence referred to in (6) was not sufficient to establish that the defendant directed the payment of $333.25 to be applied upon the article on which the purchase money in the present suit was claimed.</p> <p>2. That the mere fact, that the agents had received payments from the vendees of the defendant would not constitute payments to the plaintiffs, unless by some act or agreement, binding alike upon the defendant, the agents, and through them the plaintiffs, they were so applied.</p> <p>3. That the fact that the delivery of said deed was a controverted question on the trial of the former action, did not render the record of said action admissible as evidence that that question had passed in rom judicatam.</p> <p>4. In applying the principle of res judicata the inquiry is not