Macon v. Murray

WiNboene, J.

While defendants, appellants, bring forward and discuss in their brief filed on this appeal numerous assignments of error, we are of opinion and hold that prejudicial error is not made to appear.

First: Appellants contend that the trial court erred in denying defendants’ motion to dismiss this action “for that the judgment and record in the former action constitute res judicata, and the plaintiff is thereby estopped from maintaining this action.”

Though the judgment referred to dismissed the former action, the findings of fact and the conclusions of law based thereon as set out in the judgment, clearly show that the door was left open for the plaintiff to enforce his rights as to balance “due or to become due.” The effect of the judgment is that the action was prematurely instituted, that is, before the debt was due. And it is significant that the court concludes “that from the final judicial determination of this action the defendants are under legal duty to-use due diligence to sell the remaining lumber without arbitrary and unreasonable delay, and thereupon to pay the plaintiff the amounts due under the above contract as well as the amount, if any, due by the defendants to the plaintiff on account of lumber heretofore sold by the defendants for which plaintiff has not received compensation in *489accordance with tbe terms of tbe contract.” Manifestly, tbe judgment does not estop plaintiff from prosecuting tbe present action.

Second: Tbe charge as given by tbe court is subjected to varied criticism — botb as to statement of contentions and as to declarations of applicable principles of law. Nevertheless, when tbe charge is read contextually in tbe light of stipulated facts, and evidence offered by plaintiff and by defendants, any error there may be is deemed harmless.

Third: Tbe assignments of error based upon alleged failure of tbe court to charge as required by Gr.S. 1-180 in respect to numerous matters appear to be without merit.

Tbe case appears to have been fairly presented to tbe jury, and tbe jury has accepted plaintiff’s view.

Hence, after consideration of all assignments of error presented, we find in tbe judgment from which this appeal is taken

No error.