on demurrereffect.

its petition, and it brings this action ter is not open to inquiry here. The of the court here for review.

judgment upon the demurrer is a It is a well-settled doctrine that a finality as to any claim of the Culjudgment or decree rendered on de- vert Company against the township, murrer to a material pleading, on on open account for goods and ma

the ground that the terial sold and delivered to the townJudgment

facts therein stated ship, upon the grounds that the

are insufficient in claim was barred by the Statute of law, is as conclusive of the matters Limitations, and that the claim had and things confessed by the demur- never been presented for auditing rer as a verdict finding the same and allowance. facts to be true. This is true because The petition in this case bases the the matters in controversy in each right of the Culvert Company to recase are settled by the record. It cover upon a warrant issued prior follows that facts thus established to the judgment in the former suit can never thereafter be contested by the township for the account of between the same parties, or those the goods and material furnished. in privity with them. Ann. Cas.

While the demurrer was general in 1913A, note, p. 541, and authorities its terms, the court, in sustaining it, cited.

specified the two grounds upon In the case of Pettis v. McLain, 21 which the judgment was rendered, Okla. 521, 98 Pac. 927, it was settled only one of which is of interest here, by this court that a judgment ren- viz., the bar of the Statute of Limidered upon a general demurrer, be- tations. It is not the judgment that ing sustained, is none the less a final estops, but it is the allegations and judgment upon the merits. To the issues made, or which should have same effect, see Goldsborough v. been made, by the parties, upon Hewitt, 23 Okla. 66, 138 Am. St. which the judgment was rendered, Rep. 795, 99 Pac. 907; El Reno v. that work the estoppel. Cleveland-Trinidad Paving Co. 25 This case is founded upon the evi. Okla. 648, 27 L.R.A.(N.S.) 650, 107 dence of the cause of action in the Pac. 163.

former suit, but it represents the It is also true that such a judg- same cause of action. If the instant ment is not only conclusive between case was based upon the open acthe same parties up

count, then the rule that the Culvert on every ground of Company is estopped by the judgrecovery or defense actually pre- ment in the former suit upon not sented in the first trial, but also only all the matters in issue or upon every ground which might points in controversy, but upon have been presented. El Reno v.

every ground of recovery which Cleveland-Trinidad Paving Co. su

might have been presented, governs, pra; McDuffie v. Geiser Mfg. Co. 41

but where the second suit is founded Okla. 488, 138 Pac. 1029.

upon a different cause of action, the “In the absence of exceptional rule is different, and the inquiry is facts excusing a failure so to do, a

limited to the points or questions acparty should plead all the material tually litigated and determined in facts that constitute his claim or de

the former case. Cromwell v. Sac fense, and a failure to do so cannot County, 94 U. S. 351, 24 L. ed. 195. be made the basis of another ac- The cause of action is the indebtedtion."Prince v. Gosnell, 47 Okla. 570, ness of the township to the plain149 Pac. 1162.

tiff for materials purchased. The It is immaterial whether the trial account is evidence of the indebtedcourt was correct in its ruling upon ness, and so is the warrant. the demurrer of the township in the The only question that calls for former suit by the Culvert Company consideration is whether the plainon the account for goods sold and de- tiff could maintain this action upon livered to the township, as that mat- the warrant after permitting a judg

-scope.

-On open account-subse.

warrant.

(51 Okla. 178, 151 Pac. 854.) ment to be entered on the merits in would be in possession of both judgthe action on the account. It seems ment and warrant for the same to be established that the Culvert amount, representing the same Company could not maintain the ac- transaction, by failing to plead all tion on the account if the warrant of the facts constituting its claim had been received by it in liquidation for judgment. of the account, unless upon the trial We think that plaintiff in error it produced the warrant, or satisfac- will not be heard to complain, when torily accounted for its absence. it speculated upon the outcome of The township could not be twice sub- the action on the account, and when jected to the payment of the same judgment was rendered upon the dedebt. If, perchance, the company murrer adverse to it, then, without had obtained judgment on the origi- appealing, brings an action on the nal cause of action, then if the war- warrant representrant had gotten into the hands of a ing the same transbona fide holder, the judgment ren- action, and is met quent action on dered on the consideration for the by plea of res judiwarrant would not absolve the town- cata. We are of the opinion that ship from paying the warrant. Jack- plaintiff is estopped in this action. son v. Brown, 102 Ga. 87, 66 Am. St. Plaintiff in error contends that, Rep. 156, 29 S. E. 149.

where a party mistakes his remedy, It follows as a logical sequence he should not be precluded from that the company could have bringing another action, but this brought its action on the indebted- rule is not applicable here, because ness, as it did in the first instance, the plaintiff in error was entitled to and maintained that action by pro- waive the warrant and bring the acducing the warrant, or satisfactory tion on the open account. If it had, reasons for its failure to do so; or by mistake, attempted to pursue it could have brought the action up- some remedy that it never was ention the warrant alone. It would have tled to, then it would not be preventbeen a question of fact as to whethered from subsequently availing itself the warrant was given and received

of a remedy that it was entitled to in liquidation of the open account.

under the facts in the case; but, havThe plaintiff had only one cause

ing pursued a remedy it had a right of action, and when the demurrer was sustained it was the duty of the avail itself of the doctrine of mistake

to invoke, plaintiff in error cannot company to have amended its peti- of remedies in order to evade the tion, setting up the warrant, thus

doctrine of res judicata. taking it out of the bar of the statute. But in that action the company

We therefore recommend that the made no reference to the warrant nor

judgment of the trial court be afdid it offer to surrender the same, so

firmed. it follows that, had plaintiff in error By the Court: recovered in the former case, it It is so ordered.

Judgment against claim based on original form of indebtedness as res judicata

as to claim based on new or substituted obligation.

1. Scope, 1174. II. Bar as dependent on ground on which

former judgment was rendered,

1174. III. First action defeated because of exist

IV. Action to enforce lien after judgment

denying recovery on indebtedness,

1178. V. Substituted obligation as evidence

C

1. Scope.

dered on some ground sufficient to give It should be noted that the title of it that effect. this note limits it to cases in which While the cases discussed in this the first action is brought on the orig- note are not very explicit on this point, inal indebtedness, and the subsequent they apparently point to the concluaction on a substituted obligation or sion that the causes of action on the evidence of the indebtedness. It original and substituted obligations therefore excludes cases in which the are not the same, and that the conclufirst action is brought on the evidence siveness of the former judgment deof the indebtedness, and the later ac- pends on the ground on which it was tion on the original indebtedness. rendered. While this is probably included in

California. Barber V. Mulford what has just been said, it may be (1897) 117 Cal. 356, 49 Pac. 206; said specifically that cases are not in- Newhall v. Hatch (1901) 134 Cal. 269, cluded in which plaintiff, after being 55 L.R.A. 673, 66 Pac. 266. defeated in an action on an express

Illinois.-Palmer v. Sanger (1892) contract, sues on quantum meruit; 143 Ill. 34, 32 N. E. 390. but cases in which the first action was Iowa.-Lemon v. Sigourney Sav. on quantum meruit, and the later ac- Bank (1906) 131 Iowa, 79, 108 N. W. tion on an express contract, have been 104. included, if they bear on the question Massachusetts. Harding v. Hale of res judicata.

(1854) 2 Gray, 399. Questions as to the conclusiveness Michigan.-Sullivan v. Ross (1897) of a judgment in favor of the principal 113 Mich. 311, 71 N. W. 634, 76 N. W. debtor, in a subsequent action against 309; Stringer v. Gamble (1909) 155 his surety, and all questions of elec- Mich. 295, 30 L.R.A.(N.S.) 815, 118 tion of remedies where the first ac

N. W. 979. tion has not proceeded to judgment,

Minnesota. LEONARD V. SCHALL have also been excluded.

(reported herewith) ante, 1166.

New York.Slauson v. Englehart II. Bar as dependent on ground on which

(1861) 34 Barb. 198; Piper v. Hayformer judgment was rendered.

ward (1911) 71 Misc. 41, 127 N. Y. When a second suit between the

Supp. 240. same parties is on the same cause of South Carolina.- Pickens v. Bryant action, the judgment in the former

(1895) 45 S. C. 17, 22 S. E. 750. suit is conclusive not only as every South Dakota.-Child v. McClosky question which was decided, but also

(1900) 14 S. D. 181, 84 N. W. 769. as to every other matter which the

Texas.-Douglass v. Blount (1901) parties might have litigated and had

Tex. Civ. App. -, 62 S. W. 429, redetermined; but when the second ac

versed on another ground in (1902) tion is on a different claim, or demand,

95 Tex. 369, 58 L.R.A. 699, 67 S. W. or cause of action, the judgment in the

484; Brown v. Crumpton (1915) first suit operates as an estoppel only

Tex. Civ. App. —, 181 S. W. 540. as to the point or question actually

Thus, in Palmer v. Sanger (III.) litigated and determined. 15 R. C. L.

supra, plaintiff had presented a claim 963, 973. From these rules it would

against a decedent's estate, one item seem to follow that if an action on the

of which was for money loaned by deoriginal indebtedness, and an action

cedent for plaintiff, the repayment of on a new or substituted obligation, are regarded as based on the same cause

which decedent guaranteed; another of action, any judgment on the merits

item was for the amount of a note in the one action would be res judicata

and mortgage given as collateral or in the other action; but if they are re

additional security for the repayment garded as based on different causes of

of the money so loaned. The item on action, the judgment against the claim the note and mortgage was withdrawn based on the original indebtedness is and not passed on, but the other item not res judicata in an action on a new referred to was claimed to have been or substituted obligation, unless ren- disallowed. It was held that the judge

ment did not bar an action to foreclose The only material inquiries in this acthe mortgage, the court saying that tion were: first, whether the defendthe item might have been disallowed, ant made and delivered the note to because the guaranty referred to was Goodwin; and, second, whether the a mere verbal promise to pay the debt plaintiffs took it in the usual course of third persons, because the evidence of deal before it fell due. If this was was insufficient to establish such ver- so it was wholly immaterial, so far bal guaranty, or because the amount as the rights of the plaintiffs were for which decedent was liable could concerned, whether there was ever not be ascertained until the security any bargain and sale, or any subsistin which the moneys loaned were in- ing account between Goodwin and the vested were foreclosed, or otherwise defendant, or not. The point deterdisposed of; and that, therefore, as it mined by the judgment was wholly did not appear that it was disposed immaterial upon either of these isof by the court on any issue which sues, and was incompetent evidence to necessarily determined the right of establish a bar." plaintiff to recover on the note and An action to enforce a lien on stock mortgage, the judgment of the probate delivered as collateral security for court was not res judicata.

the payment of a note is not barred And where money which a devisee by a decree of a probate court, prowas required to pay annually to the viding that plaintiff shall be forever testator's widow was declared a lien barred from maintaining any action on the land, and part of a claim on the note, by his failure to bring an against the devisee's estate for ar- action thereon after the rejection of rears in such payments was disal- his claim on the note by the maker's lowed, because barred by the Statute administratrix. Piper V. Hayward of Limitations applicable to implied (1911) 71 Misc. 41, 127 N. Y. Supp. promises, it was held that the judg- 240. ment was not res judicata so as to And a judgment for defendant in an prevent the bringing of an action to action on notes secured by a vendor's enforce the lien on the land for the lien, in which defendant defeated perdisallowed portion of the claim. sonal liability on the note on the Stringer v. Gamble (Mich.) supra.

ground that, with plaintiff's knowlA judgment for defendant in an ac- edge and consent, he took title to the tion by an assignee of an alleged ac

land and gave the note at the request count for goods sold, rendered on the

of the real purchaser, was merely an ground that there was no such trans- adjudication of his personal liability action as the alleged sale, and no ac- on the note, and did not constitute an count in fact between the assignee and adjudication against plaintiff's right the defendant, does not bar an action

to enforce the lien. Douglass v. by the same plaintiff on a note given

Blount (1901) — Tex. Civ. App. -, 62 in consideration of such claimed sale, S. W. 429, reversed on another ground of which plaintiff is a bona fide hold- in (1902) 95 Tex. 369, 58 L.R.A. 699, er. Slauson V. Englehart (N. Y.)

67 S. W. 484. supra. The court said: "A judgment,

A judgment sustaining a demurrer to constitute a bar, must, as all the to a complaint in an action to forecases agree, be upon the very point close a mortgage, on the ground that in issue. Both actions must be, in on the facts set forth in the complaint substance, and in point of law, identi- the debt is barred by limitations, does cal, and the same evidence admissible not bar another suit to foreclose the and to some extent controlling in both. same mortgage, in which a renewal of ... But if the second action involves the secured note within the period of no inquiry into the merits of the form- limitation is alleged. Newhall er judgment, and is sustainable on Hatch (1901) 134 Cal. 269, 55 L.R.A. grounds entirely independent of such 673, 66 Pac. 266. The court said: “A former judgment, it is not barred. judgment rendered upon sustaining a That is precisely the case here.

demurrer to the complaint, upon the

V.

ground that the facts stated therein zens contracted with 0. to pay him do not entitle the plaintiff to a recov- $50,000 for having a railroad built, ery, will be a bar to an action for a and he agreed with the raiiroad comrecovery upon the same facts; but if

pany to pay it a like amount for buildother facts are stated which supply ing the road; the citizens guaranteed the defects in the first statement, or the payment of such sum, and executwhich present a different cause of ac- ed their notes to O., and placed them tion, the judgment upon the demurrer in the hands of a special committee; will not be a bar to the second action." the road apparently was built, and the

A judgment for defendant in an ac- company sued the guarantors on their tion on a note due a decedent, brought guaranty, and 0. sued the road; a by one who alleged that he had been compromise judgment was entered in constituted and appointed trustee and favor of the guarantors in the action agent for the heirs at law and distribu- against them, in consideration of the tees to collect the assets of the es- special committee's agreement to de tate and pay the debts, rendered on liver the notes to O., which was done. the ground that he had no legal capac- It was held that the judgment was not ity to sue, is not res judicata in a res judicata of the liability on the new action, in which it is alleged that guaranty contract, and did not bar an defendant was a party to the deed ap- action by 0.'s transferees on the note. pointing plaintiff for the purposes But a judgment for defendant in an stated, and, for a valuable considera- action for the purchase price of a tion, promised therein to pay the note plow purchased by his alleged agent, to plaintiff. Pickens v. Bryant (1895) in which he introduced evidence that 45 S. C. 17, 22 S. E. 750.

the alleged agent had no authority to In Barber v. Mulford (1897) 117 buy the plow, and in which the jury Cal. 356, 49 Pac. 206, the board of evidently took this view, is conclusive education of a school district ordered in his favor in a subsequent action on a bill paid, and a warrant was drawn, a note which the alleged agent transwhich, however, was not drawn, as it ferred to plaintiff in payment of the should have been, on the county school plow, or as collateral security, executsuperintendent, and therefore was not ing a guaranty of its payment in depaid.

Plaintiff thereafter sued the fendant's name, where no authority district on the original debt, and judg- for the transfer of the note is shown ment was rendered against him. It unless he had authority to purchase was held that he was not thereby es- the plow, and it is not in fact claimed topped from bringing a proceeding for that he had authority to transfer the a peremptory writ of mandate, requir- note independently of his authority to ing the board of education to issue an

purchase the plow. Child v. McClosky order in his favor on the county school

(1900) 14 S. D. 181, 84 N. W. 769. superintendent. The court pointed

A judgment for defendant on deout that the object of the first action

murrer in an action for goods sold to was to recover on the original account,

a township is res judicata in an acwhile the purpose of the second pro

tion on a warrant of the township is

sued for such indebtedness, though ceeding was to enforce performance of an official duty, treating such ac

rendered on the ground that. the account as an audited demand against

tion was barred by limitation, which the district, and said: “While it is

apparently was not true of the action possible that issues may have been

on the warrant. This holding in CORraised and determined in that case

RUGATED CULVERT Co. v. SIMPSON TWP. which go to the merits of this, it is

(reported herewith) ante, 1170, is apcertainly not made apparent that such parently based on the theory that was the fact, and the defense based on plaintiff had only one cause of action, the former action and judgment must and that, when the demurrer was susbe overruled.”

tained, plaintiff should have amended In Brown v. Crumpton (1915) the petition by setting up the warrant. Tex. Civ. App. - , 181 S. W. 540, citi- This decision would seem to be in con