McQuaid v. Michou

I. In a prior suit between the parties the plaintiff charged the defendant with negligence in his performance of the contract to effect a cure, for breach of which this action is brought, and the defendant prevailed therein. It is claimed for various reasons that this action was thereby barred. None of the reasons appear sufficient.

^It is argued that the promise to cure was an issue determined in the prior suit. While it may have been an issue, it was only a collateral one, not essential as an element of the cause of action. It was not matter to be pleaded (Chesley v. Dunklee, 77 N. H. 263),…