him upon the same cause of action is true but the effect of a judgment against

Him upon the same cause of action is true but the

This preview shows page 133 - 134 out of 333 pages.

him upon the same cause of action is true, but the effect of a judgment against Lewisohn as a precedent is not that of res judicata, and the Massachusetts court was under no obligation to follow the decision as a mere judicial precedent. Nor would assistance in the defense of the suit, because of interest in the decision as a judicial precedent which might influence the decision in his own case, create an estoppel as to Bigelow. Stryker v. Goodnow, 123 U. S. 527 . Also Rumford Chemical Works v. Hygienic Chemical Co., 215 U. S. 156 . Page 225 U. S. 127 But it is said that, if Bigelow was not in every sense a party, he was privy to Lewisohn, who was, and that the estoppel in the adverse judgment in the suit against Lewisohn protected Bigelow as well. But would that judgment, if it had been for the plaintiff in that case, have bound Bigelow in a subsequent suit by the same plaintiff upon the same facts? If not, upon what principle may he claim the advantage of it as a bar to the present suit? The cause of action was one arising ex delicto. It was several as well as joint. The right of action against both might have been extinguished by a settlement with one, or by a judgment against one and satisfaction. But the claim has come in substance to this: that, although the plaintiff had a remedy against Lewisohn and Bigelow severally or jointly, a failure to recover in an action against one is a bar to his action against the other, the facts being the same, although there has been no satisfaction for the injury done. The only basis upon which such a result can be asserted is that Bigelow would have been bound by the judgment if it had been adverse to Lewisohn, and may therefore shelter himself behind it, since it was favorable to his joint wrongdoer. It is a principle of general elementary law that the estoppel of a judgment must be mutual. Railroad Co. v. National Bank, 102 U. S. 14 ; Keokuk & W. Railroad v. Missouri, 152 U. S. 301 ; Freeman on Judgements § 159; 1 Greenleaf on Evidence, 13th ed., § 524. The mutuality of estoppel by judgment is fully recognized in both the New York and Massachusetts decisions: Atlantic Dock Co. v. New York, 53 N.Y. 64; Brigham v. Fayerweather, 140 Mass. 411, 415; Nelson v. Brown, 144 N.Y. 384. An apparent exception to this rule of mutuality had been held to exist where the liability of the defendant is altogether dependent upon the culpability of one exonerated in a prior suit, upon the same facts when sued by the Page 225 U. S. 128 same plaintiff. See Portland Gold Mining Co. v. Stratton's Independence, 158 F. 63, where the cases are collected. The unilateral character of the estoppel of an adjudication in such cases is justified by the injustice which would result in allowing a recovery against a defendant for conduct of another when that other has been exonerated in a direct suit. The cases in which it has been enforced are cases where the relation between the defendants in the two suits has been that of principal and agent, master and servant, or indemnitor and indemnitee.
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