if the whole cause of action in the second case is the same as in the first, not only the issues actually adjudicated in the first proceeding, but also those which might have been raised and passed upon, are concluded. If, then, the issues in the present case could have entered into the determination of the first case, they should have been presented; and, if they were omitted for any cause, the judgment or decree entered thereon is conclusive between the parties or their privies. See Morrett v. Fire Association, 265 Pa. 9, 12, 13, 108 A. 171."
At the inception of Bassett v. Armstrong, Poole and the County Commissioners were joined as defendants, and continued as defendants, although their connection with the case was not from the same angle, until the appeal to the Supreme Court. Even before the exceptions to the chancellor's action were heard by the court en banc the original County Commissioners had been replaced by other Commissioners who, after formal resolution of the Board of Commissioners, filed a petition in the Supreme Court which, being granted, changed them from defendants to plaintiffs; and in that change they specifically sought the reversal of the chancellor's finding that the machines were fit for use. In the said petition the successor Commissioners prayed for an order of restitution of the purchase price of the machines which had then been paid Poole, thus indicating that they were appearing, not personally, but as the representatives of the County whose duty it was to appear for it in all actions brought by or against it. But even if this realignment of parties had not occurred, a court of equity, having taken jurisdiction, has the power over the entire controversy and is not bound in its decree by the alignment of parties in the pleadings. Fleming v. Adamson, 321 Pa. 286, 32, 182 A. 518.
In this connection we repeat from the opinion in Hochman v. Mortgage Finance Corporation, quoted at greater length, supra:
"The rule [res judicata] should not be defeated by minor differences of form, parties, or allegations, when these are contrived only to obscure the real purpose -- a second trial on the same cause between the same parties.
* * *
"And, if the whole cause of action in the second case is the same as in the first, not only the issues actually adjudicated in the first proceeding, but also those which might have been raised and passed upon, are concluded. If, then, the issues in the present case could have entered into the determination of the first case, they should have been presented; and, if they were omitted for any cause, the judgment or decree entered thereon is conclusive between the parties or their privities."
The County Commissioners, by statute, had the duty of appearing for the County in all suits, and, also by statute, the County Solicitor had the duty of representing the County as its counsel in such suits. These officers appeared in Bassett v. Armstrong, not as persons individually interested in the matter, but as representatives and agents of the County. As to knowledge of the suit and its issues, they were more than in mere privity with the County, they were the County in everything but name. See United States National Bank of Portland v. Union National Bank of Philadelphia, 268 Pa. 147, 156, 157, 110 A. 792, 794: "Where the issues, necessary to a determination of the governing point are to be adjudicated, matters appropriate to the trial, either in affirmance of the right or in defense of the action, which may be then properly considered, must be presented and passed upon in that case. The formal judicial determination of the governing point as then presented is conclusive between the parties and those legally bound thereby, and all facts relative to the matter at issue which may be there passed upon, or which could have been passed upon, to sustain or defeat the claim, may be said to be judicially ascertained or determined. In such case res adjudicata is a bar to subsequent litigation between the same parties over the same subject-matter (see State Hospital for Criminal Insane v. Consolidated Water Supply Co. [267 Pa. 29], 110 A. 281, opinion by Moschzisker, J., filed April 12, 1920), and in this case would bind the principal, who knew of and had an opportunity to defend the action. While there may be no privity of estate between the principal and agent, where an agent defends on his principal's title (in this case the right to retain the funds where the defendant's position has been altered for the worse), or is acting within the scope of the authority conferred on him, or if the principal was represented, or should have been by notice or knowledge of the litigation, or actually conducted the suit, though not a party of record, the principal is concluded by the judgment, and it may be used as evidence for or against him in subsequent actions. 23 Cyc. 1245, 1265; 2 Black on Judgments (2d Ed.), § 578; 24 A. & E. Enc. of Law 751."
Under the case last cited, and numerous others to the like effect, it seems obvious that the County may not meet defendant's claim of res judicata by pointing to the fact that Allegheny County was not, by its name, a party to the action.
The claim of res judicata, however, does not apply to Number 12 of the specifications of the contract of sale. By that article Poole agreed to repair the machines and replace defective parts for a period of five years. In the Supreme Court opinion in Bassett v. Armstrong this specification is mentioned, although not by its number. The opinion seems to assume that further procedure under Articles 1 to 10 was not possible by reason of its judgment, but that action under the repair and replacement covenant was open in event of failure of Poole to comply with the specification. In its complaint plaintiff has pleaded failure of Poole to perform under the specification in very general terms, without pointing out such failure ad then proceeds to claim damages, not for repair and replacement but for "extensive experimental work on said machines", and because it was "obliged to and did redesign and reconstruct them." The words "repair" and "replace", in covenants such as that between Poole and the County, have a definite meaning. They contemplate a restoration to the original condition, and not to the employment of experts to experiment with and redesign and reconstruct. We have examined the testimony with some care and have found in it no expense to the County claimed for the restoration or repair of any ailing part. Claims are for expense of research and reconstruction amounting in cost to almost the equivalent of the original purchase price. This being so, our present inquiry is confined to alleged breaches of Specifications 1 to 10.
We come next to the matter of latency of many alleged breaches of the specifications. That a number of the possible manipulations of the machines exhibited to the jury as breaches of the specifications were not discoverable upon less than an extensive examination is quite apparent. They escaped the notice of the Secretary of the Commonwealth of Pennsylvania who, with the aid of two experts in mechanics, twice examined the machines and certified them for use by the electorate of Pennsylvania. As exhibited, the alleged defects were not only not easily discoverable by one not an expert mechanic, but were not capable of operation by one not such an expert. At the same time, however, it must be said that the testimony seems to indicate that not many of the matters alleged as breaches of the specifications were not known when Bassett v. Armstrong was before the Supreme Court. The testimony of plaintiff was to the general effect that the defects were not easily discoverable, but the date of discovery of any such defect does not appear. If it be considered that certain of the breaches claimed by plaintiff were latent and had not been discovered immediately after delivery of the machines, what is the effect of that fact? It might well serve as an excuse for failure to notify the vendor of defects in the machines under the terms of Section 49 of the Sales Act, prior to their discovery; but a different situation exists where the main issue, compliance with the contract, has been submitted to, and finally decided by, courts of competent jurisdiction. If such judgments were to be set aside upon claim of after-discovered evidence, without allegation of fraud or its equivalent, they would have a very precarious existence and the res judicata rule would have only theoretical standing. Not what was offered, but what was admissible, controls the issue.
Being of opinion that the defendant, in privity with the Poole Company, was entitled to rely upon the judgment in favor of Poole in Bassett v. Armstrong, supra, the court will enter judgment in its favor notwithstanding the verdict.
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