Case. — The counts in the declaration wereindebitatus assumpsit for $337.50, for a negro girl sold and delivered quantum valebat, and quantum meruit for another negro girl. Upon examination of the testimony it appeared by the oath of Mr. Robertson, that he was present when the negro girl named Milly, alluded to, was sold by his relation Mr. Milton to the plaintiff. When in treaty respecting the purchase of this girl, Milton's wife, and perhaps others of his family, told the plaintiff that the girl was subject to convulsion fits: they appeared to be attached to her, and used persuasions with Milton not to sell the girl on account of her infirmity. Robertson, the witness, then advised his relation if he would sell the girl not to ask, or take, a full price for her, as he might bring himself into trouble in future. The plaintiff *Page 86 was present at all this conversation, but still persisted in endeavoring to purchase the girl, which he did for much less than negroes of her appearance and age usually sold for.
The plaintiff then sold the girl to the defendant, being in his boat on his way to the Natchez, for the sum of $337.50, a full price, to be paid upon Looney's return. The plaintiff, upon the sale, represented her to be sound and healthy, which appeared from the testimony of Norris, who was present at the time of the sale. Mr. Price, a witness for the defendant, proved that he lived near the plaintiff, who told the witness that Milly had fits after he purchased her, and that he had sold her to the defendant as sound; but as he was going to the Natchez he could make his own out of her, and requested the witness not to say any thing about it. The case of Sintsenick v. Lucas, in principle, certainly, does not apply to this. It is true, with respect to judicial proceedings, that the subject of any prior adjudication cannot be re-examined, unless in due course of law by appeal or writ of error; but, to make the record of a former judicial proceeding a bar and conclusive, it should appear that the particular point in discussion had been formerly examined and decided. If it should not appear that the point had been previously an object of judicial inquiry and determination, yet consistent with the precedents and books of entries, it would seem to me that it may have been determined, for instance under the common count for goods, wares, and merchandise sold and delivered and for work and labor done, it cannot appear what particular articles were *Page 87 sub judice.2 This, as to the plea of a former recovery, it would seem to me should be the subject of averment and open to proof; and so it would seem as to such a plea, or one in its nature similar; which perhaps may be sustained in any action hereafter brought by the defendant against the plaintiff upon the ground of the false representation, provided the evidence is now admitted.
But if not pleadable according to the principles of law, it surely may be given in evidence under the general issue, where the action is bottomed on matter of parol contract, and the nature of the defence could not be otherwise than known to the plaintiff as the nature of the contract, or special notice. On this, however, it is not necessary to give any absolute opinion. The case in Esp. seems perfectly consistent with these principles. In that case evidence was objected to, because the matter in dispute might have been given in evidence in mitigation of damages in a former suit between the same parties, but there we find the objection was overruled, and with propriety, because it did not appear to the Court that the subject-matter of that action had been investigated in a former one. Inferences from this and other cases result in the position, as it strikes me, that, in the equitable action of assumpsit, whether a former determination has been had or not, is open to proof where the record is not precise in disclosing the fact. The good of the public as well as the principles of the common law are opposed to circuity of action, and it certainly comports with the maxim expedit reipublicœut finis aliquis sit litium, that the evidence should be admitted, and that either by plea, or proof under the general issue, the now plaintiff may avail himself of the recovery made in this action by liquidation and discount.1 Under these impressions, I am of opinion that the evidence is proper for the jury.
WHITE, J., doubted, upon which the discussion was continued by Stewart and Wharton, for plaintiff, and by Hamilton and Barry, for defendant; after which White, J., said the doubt which existed with him was whether the plaintiff in this action could in *Page 88 an action which might be hereafter commenced by the defendant show satisfaction by a reduction of the damages in this. Public utility seems clearly to require that if justice can be done as well in one action as by having two, that it should be the case. None of the authorities show that the evidence ought not to be admitted, and the general principles which govern actions upon the case founded upon contract are evincive, in my opinion, that matters which go in mitigation of damages in most instances should be admitted in evidence.
This I take to be one of those cases, and, as it seems to me, that the plaintiff in this action may by plea containing proper averments repel any claim to be hereafter exhibited against him by the defendant upon the representation, I am of opinion the evidence should be admitted.
2 See 7 Johns. 20; 5 Wil. ed. Bac. Ab. 443, n.
1 See 5 Wil. ed. Bac. Ab. 443, n.; 7 East, 479; Peake's Cas. 59; Camp. N. P. 38, 124, 100; 1 Johns. 124; Add. 124.