BROWN, J.
This is the second judicial proceeding between Runnells, plaintiff, and Leffel, defendant, arising out of the retention by Leffel of the commission received for the sale of real estate. For the decision in prior case, see Bunnells v. Leffel, 93 Or. 342 (176 Pac. 802, 183 Pac. 756). In the former case, it was decided by the lower court, and affirmed by this court, that no sum of money was due to Runnells from Leffel on account of their real estate transactions. The deliberate decision of this court, although pronounced by a divided court, must be considered as stare decisis upon the questions involved: 15 C. J. 938. This court adjudged, after having “duly examined the allegations of the parties and the testimony produced and the decree of the court below” in that cause, “that said decree correctly adjudicates the rights of the parties.” The decree affirmed reads, in part:
“The court finds that the plaintiff has failed to establish by competent testimony the allegations of the amended complaint and reply, and that the plaintiff has failed to prove by a preponderance of the evidence, or at all, that the three notes mentioned in the amended complaint of plaintiff made, executed and delivered by Gr. P. Higinbotham to C. B. Mays were ever paid in cash or otherwise by GL P. Higinbotham, [358]*358or any other person, or at all; and the court further finds that there is no smn or sums of money due or owing from the defendant W. E. Leffel and Alice Leffel, or either of them, to the plaintiff
It will be remembered that the partnership was to receive its commission upon the payment of the three notes mentioned in the above excerpt.
The prevailing opinion says, at pages 348 and 349, 93 Or.:
“We have read all of the evidence carefully bnt fail to find snch contention supported. The evidence shows that the original contract between C. B. Mays and G-. P. Higinbotham was canceled and the notes surrendered and that a new contract was made with Maggie Higinbotham and consummated. * * The evidence of the plaintiff clearly shows that these notes were not paid, and that no proceeds were received under the terms of said contract.”
If there is any obscurity in the decree, this expression from the opinion clarifies it: Taylor v. Taylor, 54 Or. 560 (103 Pac. 524).
An analysis of the complaint in the second action discloses that plaintiff’s right of action is based upon the assertion that $5,900 was received by Leffel as commission due the partnership by reason of the sale of the Mays real property to Higinbotham, and that Leffel designedly and wrongfully defrauded plaintiff out of his one-half interest therein, to his damage in the sum of $2,950.
The principal question for us to determine is this: Is the plaintiff barred by the former adjudication?
Discussing two main rules which govern the subject of estoppel by judgments, Mr. Black, in his work on Judgments, at Section 504, says:
“The first of these chief rules is as follows: A point which was actually and directly in issue in a former [359]*359suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, cannot be again drawn in ’ question in any future action between the same parties or their privies, whether the causes of action in the two suits be identical or different. * # The second of the main rules on the subject may be thus stated: A judgment rendered by a court of competent jurisdiction, on the merits, is a bar to any future suit between the same parties or their privies, upon the same cause of action, so long as it remains unreversed. ’ ’
These rules are supported by many decisions of this and other courts.
In the recent case of United Shoe Machinery Corp. v. United States, 257 U. S. - (66 L. Ed. -, 42 Sup. Ct. Rep. 363, 365, 366), Mr. Justice Day, in delivering the opinion of the court, said, of a decision that has frequently been cited and followed by this court: .
“Perhaps the leading case in this court upon the subject of estoppel by former judgment is Cromwell v. County of Sac, 94 U. S. 351, 352 (24 L. Ed. 195), in which this court, speaking by Mr. Justice Field, laid down the general rule of law, which has been followed in subsequent cases: # There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the' judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action, # * concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. * * But where the second action between the same parties is upon a different claim or demand, the judgment in the [360]*360prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of -which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined.’ ”
After quoting the above, the learned justice then says:
“In other words, to determine the effect of a former judgment pleaded as an estoppel, two questions must be answered: (1) Was the former judgment rendered on the same cause of action? (2) If not, was some matter litigated in the former suit determinative of a matter in controversy in the second suit? To answer these questions, we must look to the pleadings making the issues, and examine the record to determine the questions essential to the decision of the former controversy.”
The doctrine thus announced runs through the opinions of many cases decided by this court.
Cromwell v. County of Sac, supra, was an action on four bonds of the county of Sac, Iowa, for $1,000 each, and four interest coupons for $100 each. To defeat that action, the defendant relied upon the estoppel of a judgment rendered in favor of the county in a prior action brought by one Smith upon certain earlier maturing coupons on the same bonds. Proof was also offered that Cromwell was the owner of the coupons in the prior action, and that it was prosecuted for his benefit.
In the case of Caseday v. Lindstrom, 44 Or. 309 (75 Pac. 222), this court affirms the general rule that a judgment or decree rendered upon a different claim or [361]*361demand than the one being presently litigated operates as an estoppel against matters actually litigated or facts distinctly in issue, and cites in support thereof Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Applegate v. Dowell, 15 Or. 513 (16 Pac. 651); White v. Ladd, 41 Or. 324 (68 Pac. 739, 93 Am. St. Rep. 732); La Follett v. Mitchell, 42 Or. 465 (69 Pac. 916, 95 Am. St. Rep. 780).
Free access — add to your briefcase to read the full text and ask questions with AI
BROWN, J.
This is the second judicial proceeding between Runnells, plaintiff, and Leffel, defendant, arising out of the retention by Leffel of the commission received for the sale of real estate. For the decision in prior case, see Bunnells v. Leffel, 93 Or. 342 (176 Pac. 802, 183 Pac. 756). In the former case, it was decided by the lower court, and affirmed by this court, that no sum of money was due to Runnells from Leffel on account of their real estate transactions. The deliberate decision of this court, although pronounced by a divided court, must be considered as stare decisis upon the questions involved: 15 C. J. 938. This court adjudged, after having “duly examined the allegations of the parties and the testimony produced and the decree of the court below” in that cause, “that said decree correctly adjudicates the rights of the parties.” The decree affirmed reads, in part:
“The court finds that the plaintiff has failed to establish by competent testimony the allegations of the amended complaint and reply, and that the plaintiff has failed to prove by a preponderance of the evidence, or at all, that the three notes mentioned in the amended complaint of plaintiff made, executed and delivered by Gr. P. Higinbotham to C. B. Mays were ever paid in cash or otherwise by GL P. Higinbotham, [358]*358or any other person, or at all; and the court further finds that there is no smn or sums of money due or owing from the defendant W. E. Leffel and Alice Leffel, or either of them, to the plaintiff
It will be remembered that the partnership was to receive its commission upon the payment of the three notes mentioned in the above excerpt.
The prevailing opinion says, at pages 348 and 349, 93 Or.:
“We have read all of the evidence carefully bnt fail to find snch contention supported. The evidence shows that the original contract between C. B. Mays and G-. P. Higinbotham was canceled and the notes surrendered and that a new contract was made with Maggie Higinbotham and consummated. * * The evidence of the plaintiff clearly shows that these notes were not paid, and that no proceeds were received under the terms of said contract.”
If there is any obscurity in the decree, this expression from the opinion clarifies it: Taylor v. Taylor, 54 Or. 560 (103 Pac. 524).
An analysis of the complaint in the second action discloses that plaintiff’s right of action is based upon the assertion that $5,900 was received by Leffel as commission due the partnership by reason of the sale of the Mays real property to Higinbotham, and that Leffel designedly and wrongfully defrauded plaintiff out of his one-half interest therein, to his damage in the sum of $2,950.
The principal question for us to determine is this: Is the plaintiff barred by the former adjudication?
Discussing two main rules which govern the subject of estoppel by judgments, Mr. Black, in his work on Judgments, at Section 504, says:
“The first of these chief rules is as follows: A point which was actually and directly in issue in a former [359]*359suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, cannot be again drawn in ’ question in any future action between the same parties or their privies, whether the causes of action in the two suits be identical or different. * # The second of the main rules on the subject may be thus stated: A judgment rendered by a court of competent jurisdiction, on the merits, is a bar to any future suit between the same parties or their privies, upon the same cause of action, so long as it remains unreversed. ’ ’
These rules are supported by many decisions of this and other courts.
In the recent case of United Shoe Machinery Corp. v. United States, 257 U. S. - (66 L. Ed. -, 42 Sup. Ct. Rep. 363, 365, 366), Mr. Justice Day, in delivering the opinion of the court, said, of a decision that has frequently been cited and followed by this court: .
“Perhaps the leading case in this court upon the subject of estoppel by former judgment is Cromwell v. County of Sac, 94 U. S. 351, 352 (24 L. Ed. 195), in which this court, speaking by Mr. Justice Field, laid down the general rule of law, which has been followed in subsequent cases: # There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the' judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action, # * concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. * * But where the second action between the same parties is upon a different claim or demand, the judgment in the [360]*360prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of -which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined.’ ”
After quoting the above, the learned justice then says:
“In other words, to determine the effect of a former judgment pleaded as an estoppel, two questions must be answered: (1) Was the former judgment rendered on the same cause of action? (2) If not, was some matter litigated in the former suit determinative of a matter in controversy in the second suit? To answer these questions, we must look to the pleadings making the issues, and examine the record to determine the questions essential to the decision of the former controversy.”
The doctrine thus announced runs through the opinions of many cases decided by this court.
Cromwell v. County of Sac, supra, was an action on four bonds of the county of Sac, Iowa, for $1,000 each, and four interest coupons for $100 each. To defeat that action, the defendant relied upon the estoppel of a judgment rendered in favor of the county in a prior action brought by one Smith upon certain earlier maturing coupons on the same bonds. Proof was also offered that Cromwell was the owner of the coupons in the prior action, and that it was prosecuted for his benefit.
In the case of Caseday v. Lindstrom, 44 Or. 309 (75 Pac. 222), this court affirms the general rule that a judgment or decree rendered upon a different claim or [361]*361demand than the one being presently litigated operates as an estoppel against matters actually litigated or facts distinctly in issue, and cites in support thereof Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Applegate v. Dowell, 15 Or. 513 (16 Pac. 651); White v. Ladd, 41 Or. 324 (68 Pac. 739, 93 Am. St. Rep. 732); La Follett v. Mitchell, 42 Or. 465 (69 Pac. 916, 95 Am. St. Rep. 780). The opinion of the court quotes the following:
“The rule is that the judgment of a court of competent jurisdiction is not only conclusive on all questions actually and formally litigated, hut as to all questions within the issue, whether formally litigated or not.” Barrett v. Failing, 8 Or. 152, 156.
Also, “A fact or matter at issue is that upon which the plaintiff proceeds by his action, and which the defendant controverts in his pleadings.” Garwood v. Garwood, 29 Cal. 514.
The court further said:
“This is the utterance, also, of the court in King v. Chase, 15 N. H. 9 (41 Am. Dec. 675). ‘It may he stated generally that the ultimate facts upon which the recovery is had — facts which, if found the other way, the recovery must have been different — are facts in issue’: Marshall v. Shafter, 32 Cal. 176, 193.”
In the case of Ruckman v. Union Ry. Co., 45 Or. 578 (78 Pac. 748, 69 L. R. A. 480), the court states the general rule in this state to the effect that a decree rendered upon the merits is a final and conclusive determination of the rights of the parties and a bar to future litigation upon the same cause not only as to matters actually decided, but as to every other matter which the party might have litigated and had decided as an incident thereto, or essentially connected therewith, and quotes largely from an opinion in Patterson v. Wold (C. C.), 35 Fed. 791, as follows:
[362]*362“The court (Mr. Justice Brewer presiding) held that the first judgment was a bar to the second, although the grounds of recovery were different. After quoting Mr. Pomeroy’s analysis of the elements which constitute ‘a cause of action’ (Pomeroy, Eem. & Eights, § 519), he says: ‘Now, what is the plaintiff’s primary right, as alleged in these cases? Obviously, in each the same — the right to have the land; and the defendant’s corresponding’ primary duty is to let him have the land; and the defendant’s delict or wrongful act is the failure to let him have the land. These exist in each case, and in each case alike. It is true, the basis of complainant’s primary right is, as alleged, different in one case from that in the other; but this is mere difference, in the language of the Supreme Court, in “the ground of recovery.” The mere fact that different testimony would be necessary to sustain the different allegations in the two bills does not of itself necessarily make two distinct causes of action. Take this illustration: Suppose a party bring suit to recover possession of real estate, and alleges in his complaint that he is the owner by virtue of a patent from the government. After a judgment against him, would he be permitted to maintain a second action, alleging that he was the owner by virtue of certain tax proceedings or by virtue of a judicial sale? Yet different testimony would be .required to sustain his allegations in the two actions. In both of such, actions plaintiff’s primary right— that of possession based on ownership — would be the same, the only difference being in the ground of recovery. All the grounds of recovery, all the bases of plaintiff’s title, must be present in the first action, or they are lost to him forever, exactly the same as when a party sued upon a note, and having several defenses, pleads -only one — the balance are as though they never existed. The party who has his day in court must make his entire showing. He cannot support a claim or defense in different actions on different grounds.’ ”
[363]*363The court then quotes an opinion written by Mr. Justice Holmes, in United States v. California Land, Co., 192 U. S. 355 (48 L. Ed. 476, 24 Sup. Ct. Rep. 266, see, also, Rose’s U. S. Notes):
“ * * But the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim; * # and a fortiori he cannot divide the grounds of recovery.”
In the case of White v. Ladd, supra, Mr. Justice Wolverton, speaking for the court, said:
“The potency of a judgment as an estoppel concludes every fact necessary to uphold it, and extends, not only to matters actually determined, but to every other matter which the parties might have litigated and have had decided as incident to and essentially connected with the subject matter of the litigation.”
In Peacock v. Kirkland, 74 Or. 279, 284, 285 (145 Pac. 281), Mr. Justice Burnett wrote:
“In the replevin action here involved there was an opportunity offered by Sections 153 and 198, L. O. L., to settle the status of the property and the amount of damages to be assessed against the plaintiff there if such was the right adjudication of the issue. The judgment there is conclusive of the rights of the parties on the merits of the action, and while that decision stands we cannot go behind it and determine questions that should have been litigated in that action.”
In United States Nat. Bank v. Shehan, 98 Or. 155, 161 (193 Pac. 658), the court, speaking through Mr. Justice McBride, said:
“We have referred to the opinion in the case because no findings were specifically made beyond the general one that ‘the equities are with the defendants,’ and in such cases the court may have recourse to the opinion to show what actually was decided: [364]*364Gentry v. Pacific Livestock Co., 45 Or. 233 (77 Pac. 115). But beyond this we take it that the rule is firmly established that a fact properly in issue between parties, necessary to the determination of the case, will be finally concluded from re-examination in any subsequent suit or action between the same parties: Freeman on Judgments (4 ed.), § 249, p. 441 et seq., and authorities there cited: Underwood v. French, 6 Or. 67 (25 Am. Rep. 500); Barrett v. Failing, 8 Or. 152; Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Applegate v. Dowell, 15 Or. 513 (16 Pac. 651); La Follett v. Mitchell, 42 Or. 465 (69 Pac. 916, 95 Am. St. Rep. 780); Caseday v. Lindstrom, 44 Or. 309, 315 (75 Pac. 222); Wales v. Lyon, 2 Mich. 276; King v. Chase, 15 N. H. 9 (41 Am. Dec. 675). Nor is the form in which the subsequent action is prosecuted material. It would be intolerable if a party, having chosen his forum, and presented an issue for trial, should be permitted after defeat, by simply changing the form of his action, to relitigate the same matter in a new form of action: Simpson v. Hart, 1 Johns. Ch. (N. Y.) 91; Putnam v. Clark, 34 N. J. Eq. 532; Phillips v. Pullen, 45 N. J. Eq. 830 (18 Atl. 849).”
In the former case between these parties, the decree speaks for itself. In plain words, it adjudged that Leffel owed Bunnells nothing. That judgment cuts the ground from under the plaintiff’s feet. If we were uncertain as to the meaning of the decree in that case, the language of the prevailing and dissenting opinions would take away all doubt. The plaintiff has had his day in court. He chose his remedy and his forum. Plaintiff’s averment that his former partner is a conspirator and a falsifier does not remove ther bar of a former judgment. The defendant’s plea in law was good.
This case is reversed.
Reversed. Rehearing Denied.