The opinion of the court was delivered by: BYERS
The defendant seeks summary judgment under Rule 56(b), 28 U.S.C.A., dismissing the complaint 'on the grounds of res judicata and collateral estoppel by judgment in that the claims made by plaintiff in the complaint herein and the evidentiary facts upon which they are based, were raised by plaintiff and the evidence thereon fully developed and decided adversely to it on the trial of an admiralty suit litigated to a conclusion between the same parties in this Court.'
The narrow question presented is whether the issues tendered by the plaintiff were so adjudicated in a final decree, dated July 22, 1957, bearing the number A 20373.
The title of that cause was 'Ira S. Bushey & Sons, Inc., Libelant, against The Fishing Vessel Ocean Spray, her boilers, engines, tackle, apparel and furniture, etc., and Ocean Fisheries Co., Inc., Respondent-Claimant.'
Since the latter named is the plaintiff in this cause, and the libelant is the defendant, the identity of parties is apparent.
As to the issues here sought to be raised as compared to those in the admiralty cause, a brief comment is required:
Article Second of the libel (filed April 25, 1955) states that between July 23, 1954 and September 23, 1954, the libelant at its shipyard in the Borough of Brooklyn,
'at the special instance and request of the master, agent and owner of said vessel, performed work and furnished materials in repairing said vessel and furnished and delivered to said vessel ship chandlery materials and supplies which were fit, proper and necessary for said vessel at the price or value in the aggregate of the sum of $ 44,347.65, no part of which sum, although duly demanded, has been paid.'
Exhibit A attached to the libel is a statement in itemized form of the items for which decree was sought.
The amended answer (filed June 30, 1955) denied the above-quoted portion of the libel
'except (respondent) admits that the Libelant performed work and furnished materials to the F/V 'Ocean Spray' and received an alleged statement of account as per Exhibit 'A' attached to the Libel and Complaint but specifically denies that the work performed and the materials furnished to said vessel were in the amount of or the reasonable value and worth of the sum of $ 44,347.65 as claimed by the Libelant.'
The maritime jurisdiction of this Court was in terms admitted.
The said pleading also contained what was called a first, separate and complete defense in which it was alleged that during the progress of the work and prior to its completion, the libelant and the claimant-owner (this plaintiff) for valuable consideration
'agreed that the ultimate cost of said repairs and materials would be paid to the Libelant over a period of two years after the completion of said repairs, said agreement to be secured by the sale of the F/V 'Ocean Spray' to the Libelant and its immediate resale to the Claimant-Owner for an increased consideration, which would include the repair bill, to be paid to the Libelant over the aforesaid period of two years under the usual terms and conditions of a proposed conditional bill of sale.'
That the said parties agreed to embody the aforesaid agreement into formal written documents on the completion of the repairs and that after that took place the libelant 'contrary to the agreement aforesaid, wrongfully refused to comply with the terms thereof' and made demand for immediate payment.
Willingness is also alleged on the part of the claimant to pay the proper charges in accordance with the agreement above referred to, and that the claimant has been so damaged that it cannot be charged 'with the ...