Opinion,
Me. Justice Claek:
On January 10, 1867, Buehler and Robinson, through their attorney in fact, Russell, by articles of agreement, sold to Cavanaugh lot No. 2657, in the city of Erie, for the consideration of $1250, and on the 5th of March thereafter, the adjoining eastern half of lot No. 2660, for the consideration of $750. These sales were negotiated through Hayes & Kepler, real estate agents, who were authorized to receive and did receive several instalments of the purchase-money. Cavanaugh subsequently sold the same lots in parcels to Hageny, Sullivans, and Nunn. These sales were also effected through Hayes & Kepler, who were authorized by Cavanaugh to receive and receipt for the purchase-money, and they did receive and receipt for the same as it was paid in.
This action of covenant is brought upon the agreement of January 10, 1867, to enforce payment of the balance of the purchase-money. The defendant’s contention is, that the purchase-money was paid in full before suit brought, by moneys coming into the hands of Hayes & Kepler from Hageny, Sullivans, and Nunn, on their several purchases from Cavanaugh; that as Hayes & Kepler were not only the agents of Cavanaugh, but also of Buehler and Robinson, the money received by them from these various sources, must be treated as payments not only upon the agreements on which they were pri[454]*454manly paid, respectively, but also upon the original purchases from Buehler and Robinson. It is not alleged that there was any express agreement in advance to this effect, nor is it seriously contended that this was the effect of the relation which Hayes & Kepler bore to the respective parties. Hayes & Kepler in receiving money from Hageny, Sullivans, and Nunn, acted as the agent of Cavanaugh, and the money in their hands thus received, was of course the money of Cavanaugh, until by some act of his or of Hayes & Kepler, with his consent, it was actually turned over to Buehler and Robinson. Hayes & Kepler were responsible to Cavanaugh until, by his direction, they were enabled to, and did, in some way, assume responsibility to Buehler and Robinson.
But, it is contended there was evidence from which the jury might infer that the money coming into the hands of Hayes & Kepler, the common agents of both, had in fact been so applied. The defendant alleges that on the 2d of January, 1875, Hageny paid to Cavanaugh $333.25 by check of Erie City Building and Loan Association on the Humboldt Safe Deposit & Trust Co.; that the check was indorsed by Cavanaugh and delivered to Hayes & Kepler; that Cavanaugh exchanged city warrants for the check, and lifted it, leaving in their hands, however, the full amount of the check. It is conceded moreover, that on September 6, 1878, Hayes & Kepler had a balance in their hands of $497.76, received from Hageny, Sullivans, and Nunn or from some of them, as payments on their purchases from Cavanaugh; this sum is exclusive of $333.25 above referred to, the receipt of which latter sum Hayes & Kepler positively deny. It is admitted that the $333.25 was not of itself sufficient to pay Cavanaugh’s debt to Buehler and Robinson, but that this sum, taken with the amount which Hayes & Kepler admit to have been in their hands, was sufficient and more than sufficient for that purpose.
At the trial, the plaintiffs by their fifth point requested the court to instruct the jury as follows: “ That there is no evidence that Cavanaugh ever directed the application of any payment by Hageny and Sullivans, or others, to the Buehler articles, excepting those payments which were actually so applied and indorsed by Hayes & Kepler on said articles.” The point was affirmed, and this constitutes the first assignment of error.
[455]*455The only portion of the evidence which has been referred to, or which upon examination of the whole case, we have been able to find, bearing or supposed to bear upon the question raised by the answer to this point, is the testimony of J ohn Biggers, in relation to the delivery of the check for $888.25 to Hayes & Kepler, on January 2, 1875. Biggers testifies, that when Cavanaugh had indorsed and was in the act of delivering this check, he inquired of Mr. Hayes, “ Does this finish paying on the Russell lot ? ” And that Mr. Hayes replied: “ Yes, it does,” and the parties without more separated. It is contended that this was an express application by Cavanaugh of the check to the payment of his debt to Buehler and Robinson ; and further, that as it was said “ to finish paying on the Russell lot,” it was some evidence that the other moneys were or were to be applied to the same debt.
But we cannot see that the testimony of Biggers could have had any reference to the contract between Buehler and Robinson and Cavanaugh. The lots, it is true, were known, and throughout the entire transaction appear to have been spoken of, as the “ Russell lots ; ” but Biggers says that Cavanaugh spoke of the “Russell lot;” — the inquiry was, “Does this finish paying on the Russell lot?” Now, it is clear that the money was paid by Hageny on the Russell lot, wdiich he had purchased; it was in full of the exact balance owing by him; it did finish paying for that lot, and if the conversation occurred at all, it related, we think, to Cavanaugh’s contract with Hagony. If the question and answer were directed to the Cavanaugh lots, to which of them did they refer? These lots, although adjoining, were distinct; they were known by different numbers, were purchased under separate contracts, and were to be paid for on different terms and considerations. The money which it is alleged was thus applied, was more than sufficient to pay for both, and the check could not, in any proper sense, be said to “finish’’the contract. But even if the parties did refer to Cavanaugh’s purchase, there is nothing to show which one of the two lots was referred to, and we cannot assume, without proof, that the reference was to both lots together, or to the partierdar lot covered by the contract in suit. The evidence referred to can have no legitimate effect beyond the application of the $338.25, and as to that the [456]*456learned judge, in Ms general charge, in the clearest and most explicit manner, instructed the jury, if they believed the testimony of Biggers, a credit should be allowed for that sum.
But, even if it be assumed that Cavanaugh did direct Hayes & Kepler to apply the money in their hands to the purchase-money owing Buehler and Robinson, there is not the slightest evidence that they did so apply it. Hayes & Kepler were the agents of Cavanaugh; in that capacity they received the money, and in that capacity they retained it, until in some way it was turned over to Buehler and Robinson; until that was done, it was subject to his order, and liable to attachment for his debt. It does not appear that Hayes & Kepler paid the money to Buehler and Robinson, receipted it on the contract, credited it to their account, or in any way applied it to the debt in suit. The mere fact that they had the money would not constitute a payment, unless it was, by some act or agreement, binding alike upon Cavanaugh, and upon Hayes & Kepler, and through them upon Buehler and Robinson, applied as such; and upon a full examination of the case we find no evidence to this effect.
It is said, however, that a deed in due form, dated 27th December, 1874, was made from Buehler and Robinson to Cavanaugh, for both lots, not only that described in the agreement of 5th March, 1867, but also that described in the agreement of 10th January, 1867.
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Opinion,
Me. Justice Claek:
On January 10, 1867, Buehler and Robinson, through their attorney in fact, Russell, by articles of agreement, sold to Cavanaugh lot No. 2657, in the city of Erie, for the consideration of $1250, and on the 5th of March thereafter, the adjoining eastern half of lot No. 2660, for the consideration of $750. These sales were negotiated through Hayes & Kepler, real estate agents, who were authorized to receive and did receive several instalments of the purchase-money. Cavanaugh subsequently sold the same lots in parcels to Hageny, Sullivans, and Nunn. These sales were also effected through Hayes & Kepler, who were authorized by Cavanaugh to receive and receipt for the purchase-money, and they did receive and receipt for the same as it was paid in.
This action of covenant is brought upon the agreement of January 10, 1867, to enforce payment of the balance of the purchase-money. The defendant’s contention is, that the purchase-money was paid in full before suit brought, by moneys coming into the hands of Hayes & Kepler from Hageny, Sullivans, and Nunn, on their several purchases from Cavanaugh; that as Hayes & Kepler were not only the agents of Cavanaugh, but also of Buehler and Robinson, the money received by them from these various sources, must be treated as payments not only upon the agreements on which they were pri[454]*454manly paid, respectively, but also upon the original purchases from Buehler and Robinson. It is not alleged that there was any express agreement in advance to this effect, nor is it seriously contended that this was the effect of the relation which Hayes & Kepler bore to the respective parties. Hayes & Kepler in receiving money from Hageny, Sullivans, and Nunn, acted as the agent of Cavanaugh, and the money in their hands thus received, was of course the money of Cavanaugh, until by some act of his or of Hayes & Kepler, with his consent, it was actually turned over to Buehler and Robinson. Hayes & Kepler were responsible to Cavanaugh until, by his direction, they were enabled to, and did, in some way, assume responsibility to Buehler and Robinson.
But, it is contended there was evidence from which the jury might infer that the money coming into the hands of Hayes & Kepler, the common agents of both, had in fact been so applied. The defendant alleges that on the 2d of January, 1875, Hageny paid to Cavanaugh $333.25 by check of Erie City Building and Loan Association on the Humboldt Safe Deposit & Trust Co.; that the check was indorsed by Cavanaugh and delivered to Hayes & Kepler; that Cavanaugh exchanged city warrants for the check, and lifted it, leaving in their hands, however, the full amount of the check. It is conceded moreover, that on September 6, 1878, Hayes & Kepler had a balance in their hands of $497.76, received from Hageny, Sullivans, and Nunn or from some of them, as payments on their purchases from Cavanaugh; this sum is exclusive of $333.25 above referred to, the receipt of which latter sum Hayes & Kepler positively deny. It is admitted that the $333.25 was not of itself sufficient to pay Cavanaugh’s debt to Buehler and Robinson, but that this sum, taken with the amount which Hayes & Kepler admit to have been in their hands, was sufficient and more than sufficient for that purpose.
At the trial, the plaintiffs by their fifth point requested the court to instruct the jury as follows: “ That there is no evidence that Cavanaugh ever directed the application of any payment by Hageny and Sullivans, or others, to the Buehler articles, excepting those payments which were actually so applied and indorsed by Hayes & Kepler on said articles.” The point was affirmed, and this constitutes the first assignment of error.
[455]*455The only portion of the evidence which has been referred to, or which upon examination of the whole case, we have been able to find, bearing or supposed to bear upon the question raised by the answer to this point, is the testimony of J ohn Biggers, in relation to the delivery of the check for $888.25 to Hayes & Kepler, on January 2, 1875. Biggers testifies, that when Cavanaugh had indorsed and was in the act of delivering this check, he inquired of Mr. Hayes, “ Does this finish paying on the Russell lot ? ” And that Mr. Hayes replied: “ Yes, it does,” and the parties without more separated. It is contended that this was an express application by Cavanaugh of the check to the payment of his debt to Buehler and Robinson ; and further, that as it was said “ to finish paying on the Russell lot,” it was some evidence that the other moneys were or were to be applied to the same debt.
But we cannot see that the testimony of Biggers could have had any reference to the contract between Buehler and Robinson and Cavanaugh. The lots, it is true, were known, and throughout the entire transaction appear to have been spoken of, as the “ Russell lots ; ” but Biggers says that Cavanaugh spoke of the “Russell lot;” — the inquiry was, “Does this finish paying on the Russell lot?” Now, it is clear that the money was paid by Hageny on the Russell lot, wdiich he had purchased; it was in full of the exact balance owing by him; it did finish paying for that lot, and if the conversation occurred at all, it related, we think, to Cavanaugh’s contract with Hagony. If the question and answer were directed to the Cavanaugh lots, to which of them did they refer? These lots, although adjoining, were distinct; they were known by different numbers, were purchased under separate contracts, and were to be paid for on different terms and considerations. The money which it is alleged was thus applied, was more than sufficient to pay for both, and the check could not, in any proper sense, be said to “finish’’the contract. But even if the parties did refer to Cavanaugh’s purchase, there is nothing to show which one of the two lots was referred to, and we cannot assume, without proof, that the reference was to both lots together, or to the partierdar lot covered by the contract in suit. The evidence referred to can have no legitimate effect beyond the application of the $338.25, and as to that the [456]*456learned judge, in Ms general charge, in the clearest and most explicit manner, instructed the jury, if they believed the testimony of Biggers, a credit should be allowed for that sum.
But, even if it be assumed that Cavanaugh did direct Hayes & Kepler to apply the money in their hands to the purchase-money owing Buehler and Robinson, there is not the slightest evidence that they did so apply it. Hayes & Kepler were the agents of Cavanaugh; in that capacity they received the money, and in that capacity they retained it, until in some way it was turned over to Buehler and Robinson; until that was done, it was subject to his order, and liable to attachment for his debt. It does not appear that Hayes & Kepler paid the money to Buehler and Robinson, receipted it on the contract, credited it to their account, or in any way applied it to the debt in suit. The mere fact that they had the money would not constitute a payment, unless it was, by some act or agreement, binding alike upon Cavanaugh, and upon Hayes & Kepler, and through them upon Buehler and Robinson, applied as such; and upon a full examination of the case we find no evidence to this effect.
It is said, however, that a deed in due form, dated 27th December, 1874, was made from Buehler and Robinson to Cavanaugh, for both lots, not only that described in the agreement of 5th March, 1867, but also that described in the agreement of 10th January, 1867. Whether or not this deed was actually delivered, was submitted as a question of fact to the jury, and we may infer from the verdict that the jury found that it was not. The defendant’s contention is, however, that the delivery of the deed was brought in issue in the trial of the action upon the agreement of 5th March, 1867, at number 199, May Term, 1880, and that the question of the delivery had thereby passed in rem judicatam; and that the court erred in submitting the question to the jury. The defendant further contends that as the articles were thereby merged in the conveyance, this suit cannot be maintained.
But it is plain that the specific thing or matter in issue in the trial of No. 199 of May Term 1880, was the payment of the purchase-money of the agreement dated 5th March, 1867. The question of the delivery of the deed was not in issue in that case within the meaning of the rule, although the fact was controverted at the trial. The deed was offered merely [457]*457as evidonco to establish the particular matter which was in issue. The delivery of the deed was incidental only to the real issue. In applying the principle of res judicata, the inquiry is not always, perhaps, as to the identity of the cause of action, but as to the identity of the matter in issue; and the matter in issue is not what comes collaterally or incidentally in controversy under the evidence, but what is essentially and directly in issue in the cause: King v. Chase, 15 N. H. 15; Wells Res. Adj. 167; Duchess of Kingston’s Case, 20 Howell’s St. Tr. 538. The delivery of the deed was prima facie evidence of the payment of the purchase-money, and it was for this purpose the delivery was sought to be established. But mere evidential facts are not usually held conclusive; they must be such as are within the substance of the issue; all others are merely collateral. “ Neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter which came collaterally in question, though within the jurisdiction; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument from the judgment:” Duchess of Kingston’s Case, supra; Hibshman v. Dulleban, 4 W. 183.
Besides, the offer of the defendant’s counsel shows that the former trial was upon a different contract; the evidence was of payments specifically applied thereon; the testimony of Biggers was introduced to show the payment of the $333.25, and this sum, if allowed, was sufficient to satisfy the debt. Evidence was introduced it is true, as to the delivery of the deed, but it does not appear, nor was it offered to be shown in this case, upon what particular portion of the evidence the verdict was rendered. The delivery of the deed was, therefore, not essential to the finding of the former verdict, as the jury may well be supposed to have rendered their verdict upon other and different grounds. The delivery of the deed, as we have said, was prima facie evidence only of the payment of the purchase-money; to the extent to which the agreement was executed it was merged in the deed; but if the purchase-money was actually unpaid, and otherwise unsecured, the plaintiff might still recover it in this form of action: Byers v. Mullen, 9 W. 266; Neil v. Thompson, 4 W. 405. We are of opinion that the record of the former suit was properly rejected for the purpose for which it was offered.
[458]*458Nor do we discover any error in the court refusing to allow the deed to be sent out with the jury. What papers shall be furnished to the jury is largely in the discretion of the court, and we see no abuse of that discretion in this instance.
The judgment is affirmed.