majority">Mr. Justice Clayton

stated the case and delivered the opinion of the court.

Several charges were asked by the counsel of the plaintiffs to be given to the jury, four of which only seem to call for consideration.

1. If the jury believe that the defendant falsely represented that the repairs to be done on the house leased by Rowan were such as were necessary to put the house in as good repair as when Rowan received it, the defendant will be liable for the work.

2. The verdict and judgment in favor of Rowan in the suit brought by Dr. Cartwright, is conclusive evidence that Rowan was not liable for the repairs charged for in the said suit.

3. The plaintiffs are not liable for the costs of suit brought by Cartwright against Rowan, unless it is proved that they consented to the prosecution of said suit, and such costs are not a proper set-off in this suit.

6. If the jury are satisfied from the evidence that Rowan was not bound by his lease to make the repairs pointed out by Dr. Cartwright, then the transfer of such lease to Carpenter or bringing suit on it for his benefit was not payment for such repairs.

There were two other charges which, though excepted to along with these here enumerated, were too obviously correct to require any comment. They were given to the jury.

The first and sixth charges are substantially the same, and may *337be considered in connection. They propound the simple elementary principle, that if one makes a false representation to another in reference to the subject of contract, he is bound to make the representation good. If one party suffer the other to contract for an article under a delusion created by his own conduct, it will be deemed fraudulent. The defendant showed to the plaintiffs, before the work was commenced, the injuries which he said the house had sustained from Rowan, and which he also said Rowan, by the terms of the contract, was bound to repair. The plaintiffs did the work, relying upon these representations of the defendant; but the result of the suit against Rowan proved that he was not liable. They acted under a delusion created by the defendant, and it is the part of good faith that he should make good his representations. 2 Kent, 482 et seq.; 5 How. 167; 4 How. 451; 1 Meigs, 157; 3 T. R. 57.

The second instruction will be next considered. The chief objection to this is, that it declared the verdict and judgment in the case against Rowan was conclusive evidence that he was not liable for the repairs. The general rule is, that a record of a judgment is evidence only between parties and privies. There is one mode, however, of making them evidence when they would not otherwise be so, by giving notice of the pendency of the suit to a third person whose rights may ultimately be affected thereby. This is applicable between vendee and vendor, assignee and assignor, and in short in all cases in which one will have a right of action for indemnity against another in the event of loss. The person thus notified becomes quasi a party. Kip v. Brigham, 6 Johns. 158; 2 Rawle, 204; 4 Howard, 246; 3 Phil. Ev. 817. This case is within the range of that principle. Cartwright was the plaintiff of record; the suit seems' to have been for the benefit of the present plaintiffs. They had, at all events, full notice of it, and attended to its prosecution. Cartwright was an actual and they were constructive parties; the record is therefore evidence between them. There is some conflict in the authorities as to the question whether it was conclusive or only prima facie, when simply offered in evidence. The doctrine in the Duchess of Kingston’s case, 11 St. Tri. 261, is, “that the judgment directly upon the point is as a plea a bar, or as evidence conclusive be*338tween the same parties upon the same matter. Two. later English cases tend to fix a contrary rule, and to establish that the verdict and judgment are admissible in evidence, but not conclusive unless pleaded as an estoppel. Trevivan v. Lawrence, Salk. 276; Vooght v. Winch, 2 Barn. & Ald. 662; 1 Phil. Ev. 321.

In this country the question has been before many of the courts. In Pennsylvania, Maryland and Tennessee it is held the verdict and judgment are conclusive, whether pleaded or offered as evidence. In Massachusetts, Connecticut and Indiana the contrary has been held. In Virginia and New York the decisions are both ways. In this state, in the case of Pickett’s Executors v. Ford, 4 Howard, 249, the record was held to be evidence, but whether conclusive or not is not decided.

We think the principle that the verdict and judgment are not conclusive, can at most only apply in those cases in which special pleading is requisite, and cannot apply to those actions in which almost every matter may be offered in evidence under the general issue. Neither can it apply to cases in which the plaintiff’s title is by estoppel, or in which the verdict and judgment are introduced by him to show his right of recovery. See the cases collected and examined, 3 Phil. Ev. 804, 810.

But it is not necessary that this case should rest upon the conclusive character of the former verdict. - Other evidence to the same point was given, for Rowan expressly swore that he left the place in as good repair as he received it. The whole evidence is set out in the bill of exceptions, and regarding the judgment in the other case as only prima facie in its character, this verdict is fully sustained by the proof. As we think justice has been done between the parties, we are not inclined to disturb the finding, and this is in accordance with the rules of law. Gra. New Tr. 357, 407.

The other charge is as to the costs of the suit against Rowan, which the defendant attempted to make a set-off in this case. The instruction given was as favorable for the defendant as is believed to be consistent with the law. As the case stood, he was legally liable for the costs. If he had sued the present plaintiffs for the amount, after having paid them, he would not be entitled to recover, because they were incurred in the prosecution of a *339claim in which recovery could not be had by reason of his misrepresentation. If the present plaintiffs had been the real parties in that suit, and the costs adjudged against them, they might recover them of the present defendant as part of the damages sustained in consequence of his wrong. An assignee may recover of the assignor the costs expended by him in the prosecution of an unfounded claim. Butler v. Sluddeth, 6 Mon. 542. The same principle comprehends this case. .

The charges asked by the defendant were all given by the court; the jury were satisfied, it is to be presumed, that the facts did not exist which justified their application.

An objection is urged to the present form of action, and we have no doubt that the form was misconceived. But our statute of jeofails expressly enacts, that no judgment after verdict shall be reversed for any mistake or misconception of the form of action. How. & Hutch. 591.

The judgment will therefore be affirmed.

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