Pitts v. Oliver

Citations

• 13 S.D. 561
• 83 N.W. 591
• 1900 S.D. LEXIS 187

Syllabus

<p>1. T. sold P. a flock oí sheep, and, to make up the number purchased some of defendant. P. executed a chattel mortgage on the sheep to T. to secure the purchase money; and T., to secure defendant, assigned to him some of the notes executed by P. T. subsequently assigned the balance of the notes and a mortgage to the plaintiffs. By agreement between all the parties, it was understood that defendant’s notes were to have priority over those of plaintiffs. The notes not being paid, plaintiffs brought an action against P. to foreclose the mortgage, making defendant a party. Defendant answered the complaint, also seeking foreclosure of the mortgage, and claiming that his notes should be first paid out of the proceeds, and set up a cross claim against P. for the care of the sheep for two years; and P. made a cross claim against defendant for damages for negligence in the care of the sheep of which defendant had taken possession, resulting in the death of many of them. The issues between defendant and P. were tiffed, resulting in a finding- of a certain sum due P. on account of defendant’s neglig-ence. The mortgaged property was sold under a judgment, and part of the proceeds, after paying defendant’s claim, were paid over to plaintiff, leaving an unset-led balance, for which execution was issued against P., and returned unsatisfied, Held, that the judgment was no bar to an action by plaintiffs agaiut defendant, for damages arising from his negligence, since the question of plaintiffs’right to'such damages could not have been litigated in the former action.</p> <p>2. The acceptance by plaintiffs of the surplus over the amount of defendant’s claim did not estop them from thereafter bringing an action against defendant for damages suffered by them in consequence of his negligence in the care of the sheep.</p>