First National Bank of Union to sell there- | 77 N. W. 1041; Stone v. United States, 12 under. C. C. A. 451, 29 U. S. App. 32, 64 Fed. 667. Messrs. Leroy Lomax and C. H. Finn, for respondents:

One who advises another to purchase property, without mentioning a lien which he claims thereon, is estopped from asserting it after the negotiations are completed and the purchase price paid.

not only as to the matter actually deter-, amount of $1,200, and that the land was

conveyed to him in payment of this debt, and was a fraudulent preference under the statute, and therefore void. The court (Mr. Justice Brewer presiding) held that the first judgment was a bar to the second, although the grounds of recovery were different. After quoting Mr. Pomeroy's analysis of the elements which constitute "a cause of action" (Pom. Rem. & Rem. Rights, § 519), he says: "Now, what is the plaintiff's primary right, as alleged in these cases? Obviously. in each the same,-the right to have the

mere

mined, but as to every other matter which the parties might have litigated and had decided as incident to or essentially connected therewith, either as a matter of claim or defense (Neil v. Tolman, 12 Or. 289, 7 Pac. 103; Morrill v. Morrill, 20 Or. 96, 11 L. R. A. 155, 23 Am. St. Rep. 95, 25 Pac. 362; Belle v. Brown, 37 Or. 588, 61 Pac. 1024; White v. Ladd, 41 Or. 324, 93 Am. St. Rep. 732, 68 Pac. 739); but that when the action is upon a different claim or demand the former judgment can only operate as a bar or an estoppel as against matters actually liti-land; and the defendant's corresponding primary duty is to let him have the land; and the defendant's delict or wrongful act is the failure to let him have the land. These exist in each case, and in each case alike. It is true, the basis of complainant's primary right is, as alleged, different in one case from that in the other, but this is mere difference, in the language of the Su preme Court, in the grounds of recovery.' l'he fact that different testimony would be necessary to sustain the different allegations in the two bills does not of itself necessarily make two distinct causes of action. Take this illustration: Suppose a party bring suit to recover possession of real estate, and alleges in his complaint that he is owner by virtue of a patent from the government. After a judgment against him. would he be permitted to maintain a second action, alleging that he was the owner by virtue of certain tax proceedings or by virtue of a judicial sale? Yet different testimony would be required to sustain his allegations in the two actions. In both of such actions plaintiff's primary right-that of possession based on ownership-would be the same, the only difference being in the grounds of recovery. All the grounds of recovery, all the basis of plaintiff's title, must be presented in the first action, or they are lost to him forever, exactly the same as when a party upon a note, and having several defenses, pleads only one, the balance are as has his day in court must make his entire though they never existed. The party who showing. He cannot support a claim or a defense in different actions on different grounds." The recent case of United States v. California & 0. Land Co. 192 U. S. 355, 48 L. ed. 476, 24 Sup. Ct. Rep. 266, was a suit by the government for the purpose of having a certain patent of land declared void on the ground that the land was in Klamath Indian reservation, and therefore not within the provisions of the grant to the company. One plea of the land company was that the plaintiff had filed an earlier bill against it to avoid the same patent, that it had pleaded matter showing the patent to be valid. and that it was an innocent purchaser, and

gated or questions directly in issue in the former action (Barrett v. Failing, 8 Or. 152; Applegate v. Dowell, 15 Or. 513, 16 Pac. 651; LaFollett v. Mitchell, 42 Or. 465. 95 Am. St. Rep. 780, 69 Pac. 916; Caseday v. Lindstrom, 44 Or. 309, 75 Pac. 222; Gentry v. Pacific Live Stock Co. (Or.) 77 Pac. 115). This distinction should always be kept in mind in considering the effect of a former judgment or decree. If the second action or defense is upon the same claim or demand, the former judgment is a bar, not only as to matters actually determined, but such as could have been litigated; but, if it is upon another claim or demand, the former judgment is not a bar, except as to questions actually determined or directly in issue. This case comes within the principle first stated. It is a suit between the same parties and upon the same claim or demand as the former suit. The claim or demand in the first suit brought by the defendant Union Street Railway against the bank was the validity of the bonds, and the right of the bank to enforce them as against it. This is the same identical question presented, and the only one for adjudication, in the present suit. It was determined in the former suit, and the decree therein is a bar to further litigation thereof between the same parties, although the plaintiff therein did not allege or urge all the reasons entitling it to relief as demanded. The law requires a party to try his whole suit or action at one time, and he cannot separate his claim or divide his grounds of recovery or defense. The application of this principle is illustrated by two Federal cases. In Patterson v. Wold, 33 Fed. 791, the plaintiff, a receiver of an insolvent estate, brought a suit

sued

to set aside a deed from the insolvent to his son, and a mortgage given by the son to certain creditors of the insolvent; alleging the deed to be without consideration, and the mortgage a fraudulent preference. Judgment was rendered for the defendants. Thereafter the plaintiff brought another suit to avoid the same deed, alleging that the son was a creditor of the father to the

that a final decree on the merits had been missed, was barred as to all by the decree." rendered in its favor. The circuit court These two cases and the principles applied held the plea to be bad, but upon an appeal are decisive of the present suit. The claim the Supreme Court reversed the case, hold- or demand of the defendant Union Street ing that the former decree was a bar, al- Railway Company in the suit brought by it though the grounds of recovery were essen- was that the bank had no interest in the tially different, and it was urged that the bonds, and they should be surrendered up plaintiff was suing in a different capacity for cancelation. The reasons why this from that in which it brought the first suit. should be done were not the cause of action The court, by Mr. Justice Holmes, said: "On or primary subject of inquiry. There may the general principles of our law, it is toler- have been many reason why the bonds ably plain that the decree in the suit, under should have been surrendered up and canthe foregoing statute, would be a bar. The celed, and why the bank could not enforce parties, the subject-matter, and the relief them as against the property of the railway sought all were the same. Here the company; but, if the plaintiff in that suit plaintiff is the same person that brought was content to rely upon only one of such the former bill, whatever the difference of reasons as a ground for recovery, the others the interest intended to be asserted. are lost to it as completely as if they never existed.

The position that the decree in the former suit is a bar to the right of the plaintiff to foreclose the mortgage given to secure the payment of the bonds is untenable, because that matter was not germane to or connected with the cause of action or suit, and did not in any way affect the merits of the controversy then before the court for determination. The bank was not the owner of the bonds, but held them as collateral security for the debt of persons not parties to the suit. It was bound by the terms of the contract between it and the pledgeors, and no decree of foreclosure could have been made in the former suit, because the proper parties were not before the court. Union Street R. Co. v. First Nat. Bank, 42 Or. 606, 72 Pac. 586, 73 Pac. 341.

The decree of the court below will, therefore, be reversed, and one entered here as prayed for in the complaint.

Petition for rehearing overruled.

The best that can be said, apart from the act just quoted, to distinguish the two suits, is that now the United States puts forward a new ground for its prayer. Formerly it sought to avoid the patents by way of for feiture. Now it seeks the same conclusion by a different means; that is to say, by evidence that the lands originally were excepted from the grant. But in this as in the former suit it seeks to establish its own title to the fee. It may be the law in Scotland that a judgment is not a bar to a sec ond attempt to reach the same result by a different medium concludendi. . . . But the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim . . . and a fortiori he cannot divide the grounds of recovery. Unless the statute of 1889 put the former suit upon a peculiar footing, the United States was bound then to bring forward all the grounds it had for declaring the patents void, and, when the bill was dis

GEORGIA SUPREME COURT.

William W. DRAPER et al., Exrs., etc.,
Plffs. in Err.,

v.

R. O. MEDLOCK.

(... ... Ga......)

1. Where a judgment is pleaded as an estoppel, the burden is the party relying upon the estoppel to

upon

*Headnotes by FISH, P. J.

Note. As to estoppel by julgment. See also In this series, notes to Fowler v. Bowery Sav. Bank, 4 L. R. A.. on page 148, and Morrill v. Morrill, 11 L. R. A. 155.

See, upon the doctrine of res judicata generally, the proceeding case of Ruckman v. Union Railway, and note thereto.

sustain the plea by showing that the particular matter in controversy was necessarily or actually determined in the former litigation: and if it appear, from the record introduced in support of the plea, that several issues were involved in such litigation, and the verdict and judgment do not clearly show that this particular issue was then decided, before such plea can be sustained this uncertainty must be removed by extrinsic evidence showing that such matter was then decided in accordance with the contention of the party relying upon the plea.

2. Evidence offered in opposition to such plea, which shows that in the former litigation the parties alleged to be estopped by the judgment therein sought to so amend their pleading as to have the question in controversy in the subsequent litigation

MAB.,

determined, and that the court disallowed | between the same parties is not conclusive such amendment, is admissible.

Fish, P. J., delivered the opinion of the

court:

as

in a subsequent suit between them on a different cause of action, except as to issues actually made and determined in the former litigation. Accordingly, where two notes were given upon a consideration arising in one and the same transaction, a judgment rendered in favor of the payee against the maker upon one of such notes did not operate to estop the latter from setting up in a subsequent action brought by the former against him on the other note a defense which was not in issue when the judgment was rendered." If two notes given by the same maker to the same payee upon a consideration arising in one and the same transaction, when sued upon separately, represent different causes of action, then it is perfectly obvious that the suit against The plea of res judicata in the present Medlock in the city court of Lawrenceville case is more properly a plea of estoppel by upon the three promissory notes payable to judgment, as the decree relied on in support the order of Moore, Marsh, & Co., signed by of the plea was not rendered in a case in him as maker, was upon a different cause volving the same cause of action. Medlock's of action from that involved in the present equitable action against Moore, Marsh, & suit in the superior court of Gwinnett Co., in which this decree was rendered, was county against him upon his indorsements brought for the purpose of setting up his of two notes payable to his own order, and defenses to the suit which they had insti- executed by Zachry and Richmond tuted against him in the city court of makers. Even if, in comparing the causes Lawrenceville upon the three promissory of action, we look merely to the present notes which he individually had executed to case, and to whatever cause of action Medthem, and obtaining certain equitable relief. lock may be said to have had in his equisuch as the cancelation of a security deed. table action against Moore, Marsh, & Co., igetc., which he could not obtain in the city noring the fact that that was merely in the court. This action by Medlock was not an nature of an equitable answer to their suit independent suit, but was merely in the na-against him, it seems hardly necessary to ture of an equitable answer to the suit say that his cause of action in that proceedagainst him in the city court. It is evident ing was different from the cause of action that the cause of action in the suit brought of the plaintiffs in the present case against by Moore, Marsh, & Co. against Medlock in him. Whatever cause of action he had and the city court, which was tried under his set up then is obliged to be different and equitable action in the superior court, was distinct from the cause of action set up entirely different and distinct from the against him now. cause of action in the present case. In the suit in the city court the action was based upon three promissory notes given by Med-a subsequent suit between them on a differlock to Moore, Marsh, & Co., payable to ent cause of action, except as to issues actheir order, and signed by him alone as tually made and determined in the former maker. In the case in hand the suit is litigation," the question arises whether, in based upon Medlock's indorsements of two the case under consideration, Medlock promissory notes, each payable to his own showed that in the former litigation, upon order, signed by Zachry and Richmond as the result of which he relied to support his makers, indorsed in blank by Medlock, and plea of res judicata, the issue as to his liatransferred to Moore, Marsh, & Co. It is bility to Moore, Marsh, & Co. upon his inclear that the two suits were upon different dorsements of the two Zachry and Richinstruments or obligations, and the liability mond notes now sued on was both made and upon which the plaintiffs in the suit in the determined. For him to sustain his defense city court sought to recover against Med- of estoppel by judgment, it was necessary lock was different from that upon which the for him to show not only that this issue was plaintiffs in the present case seek to recover raised in the former litigation, but also that against him. Hill v. Freeman, 7 Ga. 211. it was then determined in his favor. The 220: Worth v. Carmichael, 114 Ga. 699, 40 defenses which he then set up were contraS. E. 797. In the case last cited it was dictory and inconsistent. One of them was held: "A judgment rendered in litigation that the two notes of Zachry and Richmond, 69 L. R. A.

|

As "a judgment rendered in litigation between the same parties is not conclusive in

(March 4, 1905.)

ERRO
RROR to the Superior Court for Gwin-
nett County to review a judgment in
favor of defendant in an action brought to
enforce defendant's liability as indorser of
a promissory note. Reversed.

The case sufficiently appears in the opin

ion.

Messrs. N. L. Hutchins and C. H. Brand for plaintiffs in error.

Messrs. T. M. Peeples, N. L. Hutchins, Jr., and Atkinson & Barn for defendant in error.