STONE, C. J.
The general rule is, that an issue formed before a court having jurisdiction of the subject-matter and parties, and decided by such court on the merits, is, so long as the decision remains unreversed, a eonelusiye determination of the controversy or title involved between the parties to the suit, and their privies in blood or estate. And such former determination may be pleaded in bar, or, in many cases, proved on the trial, without special pleading. It is a bar, not alone as to the matters directly presented on the face of the record. It goes further, and determines every inquiry necessarily involved in the issue as formed and decided. And any connected attendant fact, circumstance, or condition which limits, qualifies, or varies the fact in issue, is as effectually determined by it, as is the main fact itself. To come within the rule, however, the issue must be broad enough to embrace the subject, it must have been in fact considered, or so blended with the subject considered as to have become a qualifying part of it, and it must have been decided on the merits. Mr. Freeman, in his work on Judgments, § 256, speaking of what is necessary to constitute the bar, says the essentials are, “1st, that the issue in the second action, upon which the judgment is brought to bear, was a material issue in the first action, necessarily determined by the judgment therein ; 2d, that the former judgment was upon the merits.” — See also 2 Smith Lead Cas. (8th ed.) 919, et seq.
The foregoing definition does not bring within the operation [464] of the estoppel, matters, not of the essence of the contention, but brought incidentally, or collaterally into it, in the wide range frequently indulged, in the introduction of testimony. Nor, as it is sometimes said, does it include matters which require argument to bring them within the influence of the decision. It is only of those matters which, as premises, enter into and uphold the judgment (the judgment being the conclusion of the syllogism), and connected, qualifying matters, which, if produced, would change or impair the legal force and effect of the cause of action itself on which the judgment was rendered, that the judgment pronounced becomes conclusive. There is the further qualification. If there be a disconnected, independent claim, which the law allows to be introduced — a valid cross-demand, for instance — -and such claim is brought into the contention, considered, and adjudicated upon its merits, this becomes res judicata, and parties and their privies are estopped from re-litigating the validity of such claim. — S. & N. Ala. R. R. Co. v. Henlein, 56 Ala. 268.
In making good the defense of res judicata, the evidence must necessarily vary with the nature of the issues presented in the first trial. Sometimes the record makes full proof of the subject-matter both of the suit and the defense, as it does of the judgment pronounced. In others, the identity and scope of the contestation do not appear on the face of the papers. When such is the case, other sources of information must be resorted to. If necessary, it is permissible to prove what testimony was given on the former trial, and the rulings of the court, as a means, and the only means of showing precisely what issues and inquiries of fact had been submitted to the trying body. This, with the view, and solely with the view, of determining the identity of the two contentions.
On a second trial, it can never become an inquiry whether the first issue was rightly determined, either in matters of law, or of fact. Whether the issue was within the scope of the pleadings, whether it was the same as that on trial, and whether it was submitted and determined on its merits, are the subject and extent of permissible testimony on the defense of res ju,dicata. Perhaps these rules are so well defined that we need not have repeated them. — Robinson v. Windham, 9 Por. 397; Davidson v. Shipman, 6 Ala. 27; Chamberlain v. Gaillard, 26 Ala. 504; Waring v. Lewis, 53 Ala. 615; Perkins v. Moore, 16 Ala. 9; Gilbreath v. Jones, 66 Ala. 129; McCall v. Jones, 72 Ala. 369; Hanchey v. Croskrey, 1 So. Rep. 259, s. c. 80 Ala; Rakes v. Pope. 7 Ala. 161; 1 Greenl. Ev. §§ 528-30, 532.
We do not propose to discuss other features of the doctrine [465] of res judicata, as they are not pertinent to any material question in this cause.
Tested by the rules stated above, the Circuit Court did not err in admitting testimony of what witnesses had testified to on the trial of Haas v. Taylor, the judgment in which case is pleaded as res judicata to the present action. Neither was there error in allowing proof of the rulings of the presiding judge on the former trial, that the set-off of the cotton seed, pleaded as a defense to that suit, was not a legal cross-demand. The value of the cotton seed claimed as set-off in that suit, is the identical cause of action on which the present suit is founded, and the effect of that ruling was to exclude from the consideration of the jury that item of defense. The ruling was clearly correct, for at that time Taylor could maintain no action for the recovery of the cotton seed or their value. Haas had an unsatisfied lien on them, and could maintain his right to the possession until his lien was satisfied.
The right to the cotton seed or their value, was not determined on its merits in the former suit, as all the testimony tends to prove. The replication was sufficient, and the demurrer to it was rightly overruled.
Haas having a lien on the cotton seed to secure his proper charges for the ginning, was authorized to retain the possession of them until such charge was paid. This the testimony showed he did. Having such possession, it was his duty to bestow ordinary care and diligence in their preservation. The measure is, such care and diligence as an ordinarily prudent person takes of his own similar property. And if on demand of the property, the lien being discharged, it is not forth-coming, the burden is on the possessor, or lienee, to show that it perished, Was destroyed, was lost, or stolen, notwithstanding he had employed ordinary diligence in preserving it. He is not relieved of imputed fault, until he shows the exercise of this measure of diligence, unless the loss or destruction is shown to have occurred under circumstances which ordinary diligence could not have foreseen nor prevented. — Jones on Pledges, §§ 403, et seq.
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STONE, C. J.
The general rule is, that an issue formed before a court having jurisdiction of the subject-matter and parties, and decided by such court on the merits, is, so long as the decision remains unreversed, a eonelusiye determination of the controversy or title involved between the parties to the suit, and their privies in blood or estate. And such former determination may be pleaded in bar, or, in many cases, proved on the trial, without special pleading. It is a bar, not alone as to the matters directly presented on the face of the record. It goes further, and determines every inquiry necessarily involved in the issue as formed and decided. And any connected attendant fact, circumstance, or condition which limits, qualifies, or varies the fact in issue, is as effectually determined by it, as is the main fact itself. To come within the rule, however, the issue must be broad enough to embrace the subject, it must have been in fact considered, or so blended with the subject considered as to have become a qualifying part of it, and it must have been decided on the merits. Mr. Freeman, in his work on Judgments, § 256, speaking of what is necessary to constitute the bar, says the essentials are, “1st, that the issue in the second action, upon which the judgment is brought to bear, was a material issue in the first action, necessarily determined by the judgment therein ; 2d, that the former judgment was upon the merits.” — See also 2 Smith Lead Cas. (8th ed.) 919, et seq.
The foregoing definition does not bring within the operation [464] of the estoppel, matters, not of the essence of the contention, but brought incidentally, or collaterally into it, in the wide range frequently indulged, in the introduction of testimony. Nor, as it is sometimes said, does it include matters which require argument to bring them within the influence of the decision. It is only of those matters which, as premises, enter into and uphold the judgment (the judgment being the conclusion of the syllogism), and connected, qualifying matters, which, if produced, would change or impair the legal force and effect of the cause of action itself on which the judgment was rendered, that the judgment pronounced becomes conclusive. There is the further qualification. If there be a disconnected, independent claim, which the law allows to be introduced — a valid cross-demand, for instance — -and such claim is brought into the contention, considered, and adjudicated upon its merits, this becomes res judicata, and parties and their privies are estopped from re-litigating the validity of such claim. — S. & N. Ala. R. R. Co. v. Henlein, 56 Ala. 268.
In making good the defense of res judicata, the evidence must necessarily vary with the nature of the issues presented in the first trial. Sometimes the record makes full proof of the subject-matter both of the suit and the defense, as it does of the judgment pronounced. In others, the identity and scope of the contestation do not appear on the face of the papers. When such is the case, other sources of information must be resorted to. If necessary, it is permissible to prove what testimony was given on the former trial, and the rulings of the court, as a means, and the only means of showing precisely what issues and inquiries of fact had been submitted to the trying body. This, with the view, and solely with the view, of determining the identity of the two contentions.
On a second trial, it can never become an inquiry whether the first issue was rightly determined, either in matters of law, or of fact. Whether the issue was within the scope of the pleadings, whether it was the same as that on trial, and whether it was submitted and determined on its merits, are the subject and extent of permissible testimony on the defense of res ju,dicata. Perhaps these rules are so well defined that we need not have repeated them. — Robinson v. Windham, 9 Por. 397; Davidson v. Shipman, 6 Ala. 27; Chamberlain v. Gaillard, 26 Ala. 504; Waring v. Lewis, 53 Ala. 615; Perkins v. Moore, 16 Ala. 9; Gilbreath v. Jones, 66 Ala. 129; McCall v. Jones, 72 Ala. 369; Hanchey v. Croskrey, 1 So. Rep. 259, s. c. 80 Ala; Rakes v. Pope. 7 Ala. 161; 1 Greenl. Ev. §§ 528-30, 532.
We do not propose to discuss other features of the doctrine [465] of res judicata, as they are not pertinent to any material question in this cause.
Tested by the rules stated above, the Circuit Court did not err in admitting testimony of what witnesses had testified to on the trial of Haas v. Taylor, the judgment in which case is pleaded as res judicata to the present action. Neither was there error in allowing proof of the rulings of the presiding judge on the former trial, that the set-off of the cotton seed, pleaded as a defense to that suit, was not a legal cross-demand. The value of the cotton seed claimed as set-off in that suit, is the identical cause of action on which the present suit is founded, and the effect of that ruling was to exclude from the consideration of the jury that item of defense. The ruling was clearly correct, for at that time Taylor could maintain no action for the recovery of the cotton seed or their value. Haas had an unsatisfied lien on them, and could maintain his right to the possession until his lien was satisfied.
The right to the cotton seed or their value, was not determined on its merits in the former suit, as all the testimony tends to prove. The replication was sufficient, and the demurrer to it was rightly overruled.
Haas having a lien on the cotton seed to secure his proper charges for the ginning, was authorized to retain the possession of them until such charge was paid. This the testimony showed he did. Having such possession, it was his duty to bestow ordinary care and diligence in their preservation. The measure is, such care and diligence as an ordinarily prudent person takes of his own similar property. And if on demand of the property, the lien being discharged, it is not forth-coming, the burden is on the possessor, or lienee, to show that it perished, Was destroyed, was lost, or stolen, notwithstanding he had employed ordinary diligence in preserving it. He is not relieved of imputed fault, until he shows the exercise of this measure of diligence, unless the loss or destruction is shown to have occurred under circumstances which ordinary diligence could not have foreseen nor prevented. — Jones on Pledges, §§ 403, et seq.
There was proof that the ginnery or mill, while owned and operated by Haas, was nevertheless in the care and control of Weil, his agent. And there was testimony that while so in possession, Weil sold one hundred bushels of seed, and sent off another portion. This testimony was objected to by Haas, the defendant. There was nothing in this objection. Haas, as we have seen, was bound to use ordinary diligence in taking care of the cotton seed, and fastened a liability on himself for any damages done to Taylor for his failure to bestow it. And Weil, being in possession and control as his agent, he was equally responsible for his negligence and unauthorized disposition of the [466] seed, as if he, Haas, had himself perpetrated the wrong. It was a breach of his duty to safely keep, and to use ordinary diligence in preserving the cotton seed, for Taylor’s use. So, it is immaterial where the cotton seed went, when sent off by Weil. It was, a breach of duty which, under the law, rested on Haas, for which the latter is reponsible.
And this duty to preserve the cotton seed continued and would continue, until Haas disposed of them properly in discharge of his lien, or restored them to Taylor. Hence, when the possession of the mill or ginnery passed from him to Chambers Bros., the duty did not cease. He should have employed proper diligence for their continued preservation, the same as an ordinarily prudent man would bestow for the safe keeping of his own property of like kind.
It is very true that when the conversion complained of consists in a failure or refusal to deliver on demand, such demand to be effective, must be made after the plaintiff’s right to the posssession has accrued. The conversion complained of in this case is different. Unauthorized disposition, waste, or destruction of the property, or a part of it, is what the testimony tends to prove. When such is the case, no demand is necessary. Glaze v. McMillan, 7 Por. 279; Brown v. Beason, 24 Ala. 466; Kyle v. Gray, 11 Ala. 233; 6 Wait Ac. & Def. 165.
The tendency of the testimony, if believed, was to show that part of the cotton seed were sold, or otherwise disposed of by Weil, the agent in charge. The proof does not explain what became of the other missing seed. Possibly they were lost through the carelessness, or inattention of the persons in charge. If so, it might become a question whether .trover would lie for the seed thus lost. We refer to this phase of the case, for the sole purpose of preventing a misinterpretation of our. ruling. As we have shown, there was testimony tending to prove a conversion of a part of the seed ; and if there was other part for which, according to strict rules, trover would not lie, that presented a question, not of right, but of the measure of recovery. This could only be raised by a proper charge, and the record fails to show'that any such charge was asked or given. The question is not raised, and we intimate no opinion on it.
The Circuit Court did not err in the charges given, nor in the refusal of the charges asked.
Affirmed.