Gaither Corporation v. SkinnerAnnotate this Case
85 S.E.2d 909 (1955)
241 N.C. 532
GAITHER CORPORATION v. Mark L. SKINNER.
Supreme Court of North Carolina.
March 2, 1955.
*911 Worth & Horner, Elizabeth City, for plaintiff, appellant.
Barden, Stith & McCotter, New Bern, and John H. Hall, Elizabeth City, for defendant, appellee.
The doctrine of res judicata embodies the general rule that any right, fact, or question in issue and directly adjudicated on or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies. Armfield v. Moore, 44 N.C. 157; Southern Distributing Co. v. Carraway, 196 N.C. 58, 144 S.E. 535; 50 C.J.S., Judgments, § 592.
In short, the general rule is that "A final judgment rendered by a court of competent jurisdiction, on the merits, is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand, and cause of action." 30 Am.Jur., Judgments, section 172.
Also, the rules which preclude the splitting of a cause of action or the relitigation of the same cause of action between the same parties are applicable where a cause of action is adjudicated upon, even though all the relief to which the party asserting the cause of action is entitled is not requested or granted in such action. The general rule is that the whole cause of action must be determined in one action, and where an action is brought for a part of a claim, a judgment obtained in the action ordinarily precludes the owner thereof from bringing a second action for the residue of the claim. Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822; Allison v. Steele, 220 N.C. 318, 17 S.E.2d 339; 1 Am.Jur., Actions, section 96; 30 Am.Jur., Judgments, section 173.
It is to be noted that the phase of the doctrine of res judicata which precludes relitigation of the same cause of action is broader in its application than a mere determination of the questions involved in the prior action. The bar of the judgment in such cases extends not only to matters actually determined, but also to other matters which in the exercise of due diligence could have been presented for determination in the prior action. Bruton v. Carolina Power & Light Co., supra; Moore v. Harkins, 179 N.C. 167, 169, 101 S.E. 564; Wagon Co. v. Byrd, 119 N.C. 460, 26 S.E. 144; 1 Am.Jur., Actions, section 96; 30 Am.Jur., Judgments, sections 179 and 180.
And under application of the rule precluding subsequent litigation of the same cause of action, a party defendant who interposes only a part of a claim by way of recoupment, setoff, or counterclaim is ordinarily barred from recovering the balance in a subsequent action. Mann v. Mann, 176 N.C. 353, 97 S.E. 175; Manufacturing Co. v. Moore, 144 N.C. 527, 57 S.E. 213, 10 L.R.A.,N.S., 734; 30 Am.Jur., Judgments, section 189; Annotation: 8 A.L.R. 694, 734.
*912 Ordinarily, for the breach of an entire and indivisible contract only one action for damages will lie. 12 Am.Jur., Contracts, section 459. An examination of the building contract sued here discloses it is an entire and indivisible contract. 9 Am. Jur., Building and Construction Contracts, section 14; Annotation: 53 A.L.R. 103; 12 Am.Jur., Contracts, section 315 et seq.
In the prior action in Craven County Gaither Corporation, the plaintiff herein, set up against Skinner by way of counterclaim a cause of action for damages for failure to perform the building contract. Several items of breach were declared upon in the counterclaim. In the instant case Gaither Corporation attempts to relitigate the same cause of action by seeking damages for another item of the alleged breach; that is, for Skinner's failure to construct the roof in accordance with the terms of the contract. Further recovery is precluded under application of the doctrine of res judicata.
True, under application of this doctrine, where the omission of an item from a single cause of action is caused by fraud or deception of the opposing party, or where the owner of the cause of action had no knowledge or means of knowledge of the item, the judgment in the first action does not ordinarily bar a subsequent action for the omitted item. 30 Am.Jur., Judgments, sections 202 and 203.
However, there is no evidence in the instant case of fraudulent or intentional misrepresentation or concealment on the part of the defendant Skinner in respect to the construction of the roof. And the evidence is plenary that the plaintiff, Gaither Corporation, was fully apprised of the defects in the roof in October, 1952; whereas the consent judgment disposing of the Craven County action was not entered until 21 November, 1952. Moreover, it is noted that this judgment expressly stipulates "that the parties take nothing further by reason of this action." And ordinarily recitals of a judgment are conclusive as to the issues involved. 50 C.J.S., Judgments, § 713, p. 182. See also Bell v. Mutual Machine Co., 150 N.C. 111, 63 S.E. 680.
The judgment of involuntary nonsuit entered below will be upheld on the ground that the evidence clearly sustains the defendant's plea of res judicata.
We have considered the plaintiff's contention that the defendant's plea of res judicata raised an issue of fact for the jury. On this record the contention is without substantial merit. It is a wellestablished principle of procedural law with us that where the plaintiff's evidence establishes as a matter of law an affirmative defense set up by the defendant, nonsuit is proper. Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248; Hedgecock v. Jefferson Standard Life Insurance Co., 212 N.C. 638, 194 S.E. 86. It is also established with us that while ordinarily the defendant's evidence may not be considered in passing upon a motion for nonsuit, nevertheless, where the defendant's evidence is not in conflict with that offered by the plaintiff, it may be considered insofar as it tends to explain or clarify the plaintiff's evidence. Nance v. Hitch, 238 N.C. 1, 76 S.E.2d 461; Hare v. Weil, 213 N.C. 484, 196 S.E. 869; Harrison v. North Carolina Railroad Co., 194 N.C. 656, 140 S.E. 598. During the trial below the plaintiff's president and principal witness was cross-examined at length concerning the judgment roll in the prior action in Craven County. In the course of the cross-examination counsel for the plaintiff stated he was willing for the complaint, answer, and judgment in the prior action to be offered in evidence. Thereafter, on motion of the defendant, while the plaintiff was in process of offering its evidence, the judgment roll in the prior action was received in evidence, without objection. When the plaintiff rested its case, the defendant offered no further evidence. The contents of the judgment roll in nowise conflict with the plaintiff's evidence. On the contrary, the judgment roll merely explains and clarifies the testimony of the plaintiff's witness in respect thereto. Accordingly, it is proper for the *913 contents of the judgment roll to be considered with the plaintiff's evidence on the question of nonsuit. And when this is done, it is manifest that the evidence adduced below establishes as a matter of law the defendant's affirmative defense of res judicata. This being so, the judgment of nonsuit entered below will be upheld.