Mr. Justice Clark
delivered the opinion of the court, January 4th, 1886.
There is but a single question for our determination in this case : “ Is the plaintiff estopped, by the decree in the equity suit for specific performance, from maintaining an action at law for an injury to the property, which was the subject of the equity suit, committed during the pendency of the equity litigation ? ”
It must be conceded, we think, that upon the bill for specific performance the Court of Common Pleas of Allegheny county, sitting as a court of equity, had full jurisdiction to award the damages to the plaintiff, for the coal carried away and for the timber cut on the land, which was the subject of the bill up to the date of the decree. The prayer of the bill was for specific relief, purely equitable in its character, the granting of which was distinctly within the exclusive jurisdiction of equity, and to. this relief at the filing of the bill the plaintiff was admittedly entitled. .
During the pendency of the proceedings on the bill, the property was deteriorated by the defendant; specific performance as contemplated in the contract, was to this extent rendered impracticable, and the plaintiff was, without doubt, entitled to the only alternative possible, viz: compensation for the injury in damages.
The rule is well settled, that if the remedy of specific performance is possible, at the commencement of the, suit by the vendee, and whilst the action is pending, the vendor, in any way, renders the remedy impracticable, the court will not compel the plaintiff to bring a second action at law, but will do full justice by decreeing a recovery .in damages: Morss v. Elmendorf, 11 Paige, 277; Woodcock v. Bennet, 1 Cow. 711; Milkman v. Ordway, 106 Mass. 282-253; Pomeroy’s Eq. 237. A Court of Equity in such a case will ordinarily effect a complete adjudication of the whole matter in issue; will not allow any proceedings at law, without its leave, in respect of the same subject matter, and will at any time before the completion of the transaction by the execution of the conveyance and payment of the purchase money, enforce compensation in respect of any proper subject of compensation arising before that time: Fry on Spec. Perf. § 819.
If this action at law had been brought at any time, prior to the perfecting of the decree in the equity case by the delivery of the deed and the payment of the purchase money, we think it cannot be doubted that the plaintiff might have been restrained in the prosecution of it, and the ascertainment and assessment of damages would, without doubt, in that event, have been remitted to the equity jurisdiction. In Nelson v. [103]*103Bridges, 2 Beav. 239, a decree had been entered for the specific performance of an agreement, granting the right to raise the stone under a certain plot of ground. During the pendency of the proceedings, and whilst the defendants were resisting the performance, they removed a portion of the very subject matter of the suit, and the plaintiff under the decree was thereby deprived of the full benefit of his contrae?. jThis had not, either in the pleadings or proofs under the bill, been brought to the attention of the court; but after the decree a supplemental bill was filed, to obtain compensation for the loss. It was argued that compensation might have been had at law on perfecting the decree for specific performance. The Master of the Rolls, however, was of opinion that if the matter had been before the court at the first hearing, the claim for compensation would have been put in a proper train of investigation; and that as equity once entertained jurisdiction in the case, it was not necessary to resort to the circuitous remedy offered by the law; that, therefore, the plaintiff was entitled to relief upon a supplemental bill.
In Prothero v. Phelps 25 L. J., N. S. 105, Phelps, upon a bill in equity, obtained against Prothero a decree for specific performance of an agreement. Phelps, then complaining that he had been greatly injured through a breach of the agreement after the filing of the bill, and during the pendency of the proceedings thereon, proceeded at law against Prothero for recovery of the alleged damage. The argument of the plaintiffs was that Phelps, having elected to submit his rights to the judgment of a Court of Equity, that court had' full competency, on a decree for specific performance, to award, beyond the immediate relief prayed for, compensation for the damages claimed, and that he was not at liberty to proceed at law for his alleged damages, but should be remitted to the Vice-Chancellor to have an assessment made, if any were in fact sustained. On the other hand, it was contended that Phelps had a clear right to a decree for specific performance in equity, also to recover damages for his loss at law; and that the damages of which he complained, occurring after the commencement of the suit in equity, was not brought in issue in that proceeding. The Lord Justices held that the court, having jurisdiction of the subject matter, the plaintiff at law could not proceed without the permission of the court; that he ought to have submitted his claim for damages to the Court of Equity, which was competent to ascertain them; and they therefore directed an inquiry as to such damages, and restrained the action at law. “It seems to be well settled that a Court of Equity having once had jurisdiction in a suit over the subject matter of it, will not, except by its permis[104]*104sion, allow resort to any other forum in respect of that subject matter, either when the proceedings are pending in the court or after decree, except in cases where the right to sue at law arises on instruments executed under the decree. But where the decree has been entirely executed, and the cause thus out of court, any relief sought in equity can only be granted on a new,bilí:” Fry on Spec. Perf. 338. In Reynolds v. Nelson 6 Mad. 290, on the general principle stated, the court, after a decree of specific performance, restrained the prosecution of an action for damages in respect of the non-completion of the contract within the time specified; and in Frank v. Basnett 2 My. & K. 618, the plaintiff, haying obtained a decree for specific performance, the case was referred to a master to settle a conveyance; pending the proceedings, the defendant brought an action for the non-erection of a bridge, which the plaintiff was to erect across a stream : the plaintiff filed a supplemental bill, and the action was restrained.
In the case at bar, however, the decree for specific performance bad been entered, and the decree had beeu perfected by the delivery of a deed and payment of the purchase money before the action at law was instituted, and we are now brought to consider whether or not that decree will operate as an estoppel to the plaintiff’s recovery. It is certainly true, as stated in Tams v. Lewis 6 Wr. 410, that a former judgment is not conclusive of anything which was not directly decided by it, or was not material to the decision. Before such effect can be given to it in another suit, it should appear either from the record or aliunde, that it must have rested on the precise question, which it is sought again to agitate. Whether this is so or not may appear from the record itself, or it may be shown by evidence not inconsistent with the record: See, also, Duchess of Kingston’s Case, 11 State Trials, 261; Hibshman v. Dulleban, 4 Watts, 183.
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Mr. Justice Clark
delivered the opinion of the court, January 4th, 1886.
There is but a single question for our determination in this case : “ Is the plaintiff estopped, by the decree in the equity suit for specific performance, from maintaining an action at law for an injury to the property, which was the subject of the equity suit, committed during the pendency of the equity litigation ? ”
It must be conceded, we think, that upon the bill for specific performance the Court of Common Pleas of Allegheny county, sitting as a court of equity, had full jurisdiction to award the damages to the plaintiff, for the coal carried away and for the timber cut on the land, which was the subject of the bill up to the date of the decree. The prayer of the bill was for specific relief, purely equitable in its character, the granting of which was distinctly within the exclusive jurisdiction of equity, and to. this relief at the filing of the bill the plaintiff was admittedly entitled. .
During the pendency of the proceedings on the bill, the property was deteriorated by the defendant; specific performance as contemplated in the contract, was to this extent rendered impracticable, and the plaintiff was, without doubt, entitled to the only alternative possible, viz: compensation for the injury in damages.
The rule is well settled, that if the remedy of specific performance is possible, at the commencement of the, suit by the vendee, and whilst the action is pending, the vendor, in any way, renders the remedy impracticable, the court will not compel the plaintiff to bring a second action at law, but will do full justice by decreeing a recovery .in damages: Morss v. Elmendorf, 11 Paige, 277; Woodcock v. Bennet, 1 Cow. 711; Milkman v. Ordway, 106 Mass. 282-253; Pomeroy’s Eq. 237. A Court of Equity in such a case will ordinarily effect a complete adjudication of the whole matter in issue; will not allow any proceedings at law, without its leave, in respect of the same subject matter, and will at any time before the completion of the transaction by the execution of the conveyance and payment of the purchase money, enforce compensation in respect of any proper subject of compensation arising before that time: Fry on Spec. Perf. § 819.
If this action at law had been brought at any time, prior to the perfecting of the decree in the equity case by the delivery of the deed and the payment of the purchase money, we think it cannot be doubted that the plaintiff might have been restrained in the prosecution of it, and the ascertainment and assessment of damages would, without doubt, in that event, have been remitted to the equity jurisdiction. In Nelson v. [103]*103Bridges, 2 Beav. 239, a decree had been entered for the specific performance of an agreement, granting the right to raise the stone under a certain plot of ground. During the pendency of the proceedings, and whilst the defendants were resisting the performance, they removed a portion of the very subject matter of the suit, and the plaintiff under the decree was thereby deprived of the full benefit of his contrae?. jThis had not, either in the pleadings or proofs under the bill, been brought to the attention of the court; but after the decree a supplemental bill was filed, to obtain compensation for the loss. It was argued that compensation might have been had at law on perfecting the decree for specific performance. The Master of the Rolls, however, was of opinion that if the matter had been before the court at the first hearing, the claim for compensation would have been put in a proper train of investigation; and that as equity once entertained jurisdiction in the case, it was not necessary to resort to the circuitous remedy offered by the law; that, therefore, the plaintiff was entitled to relief upon a supplemental bill.
In Prothero v. Phelps 25 L. J., N. S. 105, Phelps, upon a bill in equity, obtained against Prothero a decree for specific performance of an agreement. Phelps, then complaining that he had been greatly injured through a breach of the agreement after the filing of the bill, and during the pendency of the proceedings thereon, proceeded at law against Prothero for recovery of the alleged damage. The argument of the plaintiffs was that Phelps, having elected to submit his rights to the judgment of a Court of Equity, that court had' full competency, on a decree for specific performance, to award, beyond the immediate relief prayed for, compensation for the damages claimed, and that he was not at liberty to proceed at law for his alleged damages, but should be remitted to the Vice-Chancellor to have an assessment made, if any were in fact sustained. On the other hand, it was contended that Phelps had a clear right to a decree for specific performance in equity, also to recover damages for his loss at law; and that the damages of which he complained, occurring after the commencement of the suit in equity, was not brought in issue in that proceeding. The Lord Justices held that the court, having jurisdiction of the subject matter, the plaintiff at law could not proceed without the permission of the court; that he ought to have submitted his claim for damages to the Court of Equity, which was competent to ascertain them; and they therefore directed an inquiry as to such damages, and restrained the action at law. “It seems to be well settled that a Court of Equity having once had jurisdiction in a suit over the subject matter of it, will not, except by its permis[104]*104sion, allow resort to any other forum in respect of that subject matter, either when the proceedings are pending in the court or after decree, except in cases where the right to sue at law arises on instruments executed under the decree. But where the decree has been entirely executed, and the cause thus out of court, any relief sought in equity can only be granted on a new,bilí:” Fry on Spec. Perf. 338. In Reynolds v. Nelson 6 Mad. 290, on the general principle stated, the court, after a decree of specific performance, restrained the prosecution of an action for damages in respect of the non-completion of the contract within the time specified; and in Frank v. Basnett 2 My. & K. 618, the plaintiff, haying obtained a decree for specific performance, the case was referred to a master to settle a conveyance; pending the proceedings, the defendant brought an action for the non-erection of a bridge, which the plaintiff was to erect across a stream : the plaintiff filed a supplemental bill, and the action was restrained.
In the case at bar, however, the decree for specific performance bad been entered, and the decree had beeu perfected by the delivery of a deed and payment of the purchase money before the action at law was instituted, and we are now brought to consider whether or not that decree will operate as an estoppel to the plaintiff’s recovery. It is certainly true, as stated in Tams v. Lewis 6 Wr. 410, that a former judgment is not conclusive of anything which was not directly decided by it, or was not material to the decision. Before such effect can be given to it in another suit, it should appear either from the record or aliunde, that it must have rested on the precise question, which it is sought again to agitate. Whether this is so or not may appear from the record itself, or it may be shown by evidence not inconsistent with the record: See, also, Duchess of Kingston’s Case, 11 State Trials, 261; Hibshman v. Dulleban, 4 Watts, 183.
The specific performance of the contract of June 2d, 1881, rvas the subject matter of the suit in equity, and that subject matter was, in its nature and by the terms of the contract, entire, and was, as we have said, within the peculiar and exclusive jurisdiction of equity. The contract covered the conveyance of the land as it existed at the time; and the suit, for the specific performance of it, was an action upon the contract in its entirety; if during the pendency of the proceedings, by the act of the defendant, the plaintiff could not have the full benefit of the contract, the latter was entitled to damages, as part and parcel of his claim under the bill. The question of damages did not come collaterally in question, and thus only incidentally cognizable in the equity jurisdiction, but was presented directly. The award and assessment of [105]*105damages were, therefore, necessarily and directly involved in the decree, and if no damages were in fact awarded, we must assume that none were sustained.
Thompson v. Myrick, 24 Minn. 4, is a ease involving precisely similar principles ; it was an action at law for damages brought after a decree in equity for specific performances. The defendant in that case, before the action for specific performance was brought, had disposed of a part of the real estate; ail the relief asked for in the bill, and granted by the decree was a conveyance of the real estate not disposed of. The action at law, having been brought to recover damages to compensate the plaintiff for the loss of the land disposed of, it was held, that a judgment determines every matter which pertains to the cause of action or defence, or which is involved in the measure of relief to which the cause of action or defence entitles the party, even though such matter may not be set forth in the pleadings so as to admit proof, and call for an actual decision upon it; and that in an action for specific performance to convey real estate, any claim which the plaintiff may have to compensation, on account of defendant’s inability to perform his contract, pertains to the cause of action, and Avhetlier presented by the pleadings or not, is determined by the judgment.
It is unimportant that the deterioration of the estate occurred after the filing of the bill, or that it is not alluded to in the prayer or set forth in a supplemental bill. Although the better practice undoubtedely is to state the grounds of the claim, compensation may, upon the principle already stated, be made at any time during the investigation before or after decree, until the transaction is completed by actual performance, though the. prayer of the bill and the decree do not allude to it: Wilson v. Williams, 3 Jur. N. S. 810. It may be said that the plaintiff did not know of this deterioration; to this we may-reply that before receiving his deed and paying his money, in pursuance of the decree, it was his duty to know the condition of the propert}»-. He had submitted the adjudication of his rights to a court competent to make a complete adjudication, and it devolved upon him to know that he was fully projected in the decree before it was perfected by performance. In Phelps v. Prothero (supra), it was urged, on the part of the defendant, that the damages, for which he was suing at law, arose, in fact, after the institution of the suit, “ and this,” says Lord Justice Turner, “ no doubt is true; but it is unimportant, for the defendant had ample opportunity of bringing them under consideration of the court.” So the plaintiff here had ample opportunity, at any time before the decree was perfected, to have brought his claim under the considera[106]*106tion of - the court, to which he had himself committed the case. In the decree for specific performance, he might have obtained full compensation and indemnity against his loss. We are of opinion that this claim was brought directly in question on that issue, and must be presumed to have been there determined.
The judgment is affirmed.