Mr. Justice Bean,
after stating the facts, delivered the opinion of the court.
The several assignments of error may all be disposed of by a consideration of the motions for a nonsuit and for a directed verdict. The grounds of these motions are: (1) That it was not shown that Taylor, who assumed to attach the potatoes on May 31, 1898, ivas an officer authorized to serve a writ of attachment; (2) that his return upon the writ is conclusive in this action as to the number of bushels of potatoes attached; and (3) that the judgment in the former action brought by the defendant against the plaintiff on July 9, 1898, to recover damages for an alleged breach of the contract, is a bar to this action.
1. The first objection is disposed of by the fact that defendant affirmatively alleges in his answer that the writ of attachment referred to was placed in Taylor’s hands as constable for service, and that it was in pursuance of his direction and under [470]*470his instruction that Taylor, as such constable, levied upon and took into his possession 270 sacks of potatoes belonging to the plaintiff. It is thus affirmatively asserted that Taylor was the officer he represented himself to be, and that, in seizing the property of the plaintiff he was acting under the instruction and by the direction of the defendant. The defendant, therefore, is concluded by his answer to question the official character or authority of Taylor.
2. Moreover, it is not material whether Taylor had authority to serve the writ of attachment or not. This is an action to recover damages for breach of a contract, and not for a wrongful attachment. The averment in the complaint that the property was seized and attached at the instance and by the direction of the defendant, and the proof in support thereof, were for the purpose of excusing the plaintiff’s failure to deliver the potatoes as stipulated in the contract. The allegation and proof were material in order to show either a waiver by the defendant of performance of this provision of the contract, or that by his action and conduct he had made it impossible for the plaintiff to deliver the goods as agreed upon.
3. Nor is the return of the officer, as shown by the record, conclusive between the parties as to the number of bushels attached. There are two returns in the record, from one of which it appears that the officer attached and had in his possession at Jones’ warehouse at Brooks 270 sacks of potatoes, and the balance were “in the field and sacked;” and from the other that he attached 270 sacks, and had them in his possession in the warehouse at Brooks. So that, if the question of the number of bushels attached was to be determined from the officer’s return, its correct solution would be difficult. But, as already suggested, the allegation and proof of the attachment are only for the purpose of excusing plaintiff’s failure to comply with a condition precedent on his part. The oral proof shows, or tends to show, that the entire crop of potatoes was seized by the officer, and placed in the custody of a keeper, at the instance and by the direction of the defendant, who was present at the time. This was sufficient for the purposes of [471]*471this case, whether conforming to the facts as stated in the officer-’s return or not.
4. The next question has reference to the effect of the judgment in the action brought by the defendant against the plaintiff on July 9, 1898, to recover damages for an alleged breach of the contract set out in the complaint in the present action. A brief reference to the pleadings in the case of Mitchell v. La Follett, 38 Or. 178 (63 Pac. 54), is necessary to an intelligent understanding of the question involved. The complaint, after setting out the agreement, allegud, in substance, that on the 27th of May, 1898, La Follett repudiated the contract, and informed Mitchell that he would not deliver the potatoes as stipulated, or at all, and "ever since has and still does refuse to deliver the said potatoes to the plaintiff, or any part thereof that upon such refusal Mitchell demanded the return of the $20 and payment for the sacks furnished, but La Follett refused to pay the same, or any part thereof. The answer denied the breach of the contract as alleged in the complaint, and for an affirmative defense averred that on or about the 27th of May, 1898, Mitchell proposed to take the potatoes at La Follett ’s farm, where they were situated, and La Follett agreed to so deliver them, provided Mitchell would pay the balance due before their removal, which he refused to do, and then and there notified La Follett that he would not accept the potatoes at any time or .place, and absolutely refused to receive them, or to pay the balance of the purchase price, although La Follett was then, is now, and- ever since has been, ready and willing to deliver them, and at divers times thereafter and before the commencement of the action, offered and tendered to Mitchell the whole of the potatoes, sacks, and twine; that La Follett had duly and fully performed and offered to perform all the conditions and provisions of the contract on his part. There is no dispute under the authorities as to the rule of law that an issue once determined in a court of competent jurisdiction cannot be again litigated between the same parties. But there is a difference, sometimes overlooked, between the effect of a judgment as a bar or estoppel against the prosecution of a. second [472]*472action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or demand. In the former case the judgment, if upon the merits, is an absolute bar, and concludes the parties and their privies, not only as to every matter that was actually litigated, but as to any other that might have been litigated. Where, however, the action, although between the same parties, is upon a different claim or demand, the judgment in the prior action operates as a bar or estoppel only as to those matters directly in issue, and not those collaterally litigated. This distinction is pointed out by Mr. Justice Field with his usual clearness, in Cromwell v. Sac County, 94 U. S. 351, and was applied by this court in Glenn v. Savage, 14 Or. 567 (13 Pac. 442), and Applegate v. Dowell, 15 Or. 513, 522 (16 Pac. 651).
Before, therefore, the judgment in Mitchell v. La Follett, 38 Or. 178 (63 Pac. 54), can be invoked as a bar to this action, it must appear that the question now in issue was directly involved in that case and determined therein. Within the meaning of the rule relied upon, a fact or matter in issue is said to be “that upon which the plaintiff proceeds by his action and which the defendant controverts in his pleadings”: Garwood v. Garwood, 29 Cal. 514; King v. Chase, 15 N. H. 9 (41 Ann. Dec. 675). Now, in the former action Mitchell proceeded and based his right to recover, upon an alleged breach of the contract by La Follett' on the 27th of May. That was the material allegation in the complaint, which the latter controverted by his answer, and was the subject of inquiry before the court and jury.
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Mr. Justice Bean,
after stating the facts, delivered the opinion of the court.
The several assignments of error may all be disposed of by a consideration of the motions for a nonsuit and for a directed verdict. The grounds of these motions are: (1) That it was not shown that Taylor, who assumed to attach the potatoes on May 31, 1898, ivas an officer authorized to serve a writ of attachment; (2) that his return upon the writ is conclusive in this action as to the number of bushels of potatoes attached; and (3) that the judgment in the former action brought by the defendant against the plaintiff on July 9, 1898, to recover damages for an alleged breach of the contract, is a bar to this action.
1. The first objection is disposed of by the fact that defendant affirmatively alleges in his answer that the writ of attachment referred to was placed in Taylor’s hands as constable for service, and that it was in pursuance of his direction and under [470]*470his instruction that Taylor, as such constable, levied upon and took into his possession 270 sacks of potatoes belonging to the plaintiff. It is thus affirmatively asserted that Taylor was the officer he represented himself to be, and that, in seizing the property of the plaintiff he was acting under the instruction and by the direction of the defendant. The defendant, therefore, is concluded by his answer to question the official character or authority of Taylor.
2. Moreover, it is not material whether Taylor had authority to serve the writ of attachment or not. This is an action to recover damages for breach of a contract, and not for a wrongful attachment. The averment in the complaint that the property was seized and attached at the instance and by the direction of the defendant, and the proof in support thereof, were for the purpose of excusing the plaintiff’s failure to deliver the potatoes as stipulated in the contract. The allegation and proof were material in order to show either a waiver by the defendant of performance of this provision of the contract, or that by his action and conduct he had made it impossible for the plaintiff to deliver the goods as agreed upon.
3. Nor is the return of the officer, as shown by the record, conclusive between the parties as to the number of bushels attached. There are two returns in the record, from one of which it appears that the officer attached and had in his possession at Jones’ warehouse at Brooks 270 sacks of potatoes, and the balance were “in the field and sacked;” and from the other that he attached 270 sacks, and had them in his possession in the warehouse at Brooks. So that, if the question of the number of bushels attached was to be determined from the officer’s return, its correct solution would be difficult. But, as already suggested, the allegation and proof of the attachment are only for the purpose of excusing plaintiff’s failure to comply with a condition precedent on his part. The oral proof shows, or tends to show, that the entire crop of potatoes was seized by the officer, and placed in the custody of a keeper, at the instance and by the direction of the defendant, who was present at the time. This was sufficient for the purposes of [471]*471this case, whether conforming to the facts as stated in the officer-’s return or not.
4. The next question has reference to the effect of the judgment in the action brought by the defendant against the plaintiff on July 9, 1898, to recover damages for an alleged breach of the contract set out in the complaint in the present action. A brief reference to the pleadings in the case of Mitchell v. La Follett, 38 Or. 178 (63 Pac. 54), is necessary to an intelligent understanding of the question involved. The complaint, after setting out the agreement, allegud, in substance, that on the 27th of May, 1898, La Follett repudiated the contract, and informed Mitchell that he would not deliver the potatoes as stipulated, or at all, and "ever since has and still does refuse to deliver the said potatoes to the plaintiff, or any part thereof that upon such refusal Mitchell demanded the return of the $20 and payment for the sacks furnished, but La Follett refused to pay the same, or any part thereof. The answer denied the breach of the contract as alleged in the complaint, and for an affirmative defense averred that on or about the 27th of May, 1898, Mitchell proposed to take the potatoes at La Follett ’s farm, where they were situated, and La Follett agreed to so deliver them, provided Mitchell would pay the balance due before their removal, which he refused to do, and then and there notified La Follett that he would not accept the potatoes at any time or .place, and absolutely refused to receive them, or to pay the balance of the purchase price, although La Follett was then, is now, and- ever since has been, ready and willing to deliver them, and at divers times thereafter and before the commencement of the action, offered and tendered to Mitchell the whole of the potatoes, sacks, and twine; that La Follett had duly and fully performed and offered to perform all the conditions and provisions of the contract on his part. There is no dispute under the authorities as to the rule of law that an issue once determined in a court of competent jurisdiction cannot be again litigated between the same parties. But there is a difference, sometimes overlooked, between the effect of a judgment as a bar or estoppel against the prosecution of a. second [472]*472action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or demand. In the former case the judgment, if upon the merits, is an absolute bar, and concludes the parties and their privies, not only as to every matter that was actually litigated, but as to any other that might have been litigated. Where, however, the action, although between the same parties, is upon a different claim or demand, the judgment in the prior action operates as a bar or estoppel only as to those matters directly in issue, and not those collaterally litigated. This distinction is pointed out by Mr. Justice Field with his usual clearness, in Cromwell v. Sac County, 94 U. S. 351, and was applied by this court in Glenn v. Savage, 14 Or. 567 (13 Pac. 442), and Applegate v. Dowell, 15 Or. 513, 522 (16 Pac. 651).
Before, therefore, the judgment in Mitchell v. La Follett, 38 Or. 178 (63 Pac. 54), can be invoked as a bar to this action, it must appear that the question now in issue was directly involved in that case and determined therein. Within the meaning of the rule relied upon, a fact or matter in issue is said to be “that upon which the plaintiff proceeds by his action and which the defendant controverts in his pleadings”: Garwood v. Garwood, 29 Cal. 514; King v. Chase, 15 N. H. 9 (41 Ann. Dec. 675). Now, in the former action Mitchell proceeded and based his right to recover, upon an alleged breach of the contract by La Follett' on the 27th of May. That was the material allegation in the complaint, which the latter controverted by his answer, and was the subject of inquiry before the court and jury. If the finding and judgment had been in favor of Mitchell, La Follett would be estopped from alleging in this action anything to the contrary; but, as the action resulted in a final judgment in favor of La Follett, it constituted an adjudication that there had been no breach of the contract on his part, but did not determine that Mitchell himself had not violated the terms and conditions thereof. That question was not involved in the former controversy, and the judgment therein is no bar to this'action. The plaintiff was not obliged to set up in the former action a breach of the contract by the defendant, [473]*473for the purpose of recovering damages therefor: Freeman, Judgm. (3 ed.), §§ 227, 228. And, as said by Mr. Justice Field in Cromwell v. Sac County, 94 U. S. 351, “It is not believed that there are any cases going to the extent that, because in the prior action a different question from that actually determined might have arisen and been litigated, therefore such possible question is to be considered as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions. On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause because it might have been determined in the first action. ’ ’ So we conclude that the judgment in the former action between the same parties to this record is in no way a bar to this, because the point now in controversy was neither involved nor litigated there.
5. It is insisted, however, that the position assumed by the plaintiff in the present case is inconsistent with his answer in the former one, because it was there alleged that he had offered to deliver the whole of the potatoes to the defendant, and was able and willing to perform the contract on his part. That action, however, was grounded on the repudiation of the contract by the plaintiff before the time for delivery had arrived. That was the gist of the controversy, and the only question really litigated and settled by the judgment. The mere inconsistency, if there is any, between some of the allegations of plaintiff’s answer in the case referred to and the position he now assumes, does not estop him from maintaining this action, because the defendant has not been misled or injured thereby, and therefore has no cause of complaint on that ground. The evidence does tend to show that the plaintiff was ready and willing at all times to comply with the terms of his contract and deliver the potatoes as agreed upon, and so notified the defendant in writing, but that he was prevented from doing so by the wrongful acts of the defendant. It is therefore doubtful whether the allegations of his answer in the former action are in any substantial sense inconsistent with the position now [474]*474assumed by bim. But, whether they are or not, they afford no reason why the judgment therein should be considered as an estoppel or conclusive bar to this ease.
It follows from these views that the judgment of the court below should be affirmed, and it is so ordered. Affirmed.