The opinion of the Court was delivered by
Mr. Chief Justice McIver.
The sole question raised by this appeal is, whether his Honor, Judge Benet, erred in overruling the plea of res judicata, set up by defendant in her answer, as a separate defense, in addition to the defense of a general denial. It appears that on the 10th of February, 1894, the plaintiffs in the present action commenced an action against the defendant herein for thq foreclosure of a mortgage on real estate, alleged to have been executed to secure the performance of the conditions of a bond, which was likewise alleged to have been executed by the said defendant. In that complaint the plaintiffs alleged: 1st. That said bond was given in consideration of an agree: ment, expressed therein, between plaintiffs and defendant, whereby plaintiffs had agreed to advance cash and plantation supplies to defendant to enable her to carry on her farming operations, during the year 1892, to an amount, therein specified. 2d. That a mortgage on certain real estate, described therein, was executed by defendant to secure the payment of said bond. 3d. That said mortgage was duly recorded. 4th. That the plaintiffs named constituted the partnership of F. W. Wagener & Co. 5th. That the plaintiffs in pursuance of their said agreement, and in consideration of the security given them as aforesaid, advanced to the defendant in cash and plantation supplies, from the 9th of February, 1892, to the 13th of October, 1892, the sum of $2,509.16, no part of which has been paid except the sum of $290, on the 10th of October, 1892. 6th. That the condition of said bond and mortgage has been broken, [32]*32and there is due and remaining unpaid upon said bond and mortgage the sum of $2,219.16, with interest, &c. Wherefore, the plaintiffs demanded judgment, “that the said mortgage may be foreclosed, and the equity of redemption barred, the premises ordered to be sold and the proceeds applied to the payment of said debt, and execution awarded for the balance against the defendant, M. C. Kirven.” To that complaint defendant answered: 1st. Admitting the allegation in paragraph 4 of the complaint, as to the partnership of plaintiffs. 2d. Admitting that a paper purporting to be such a mortgage as is set forth in paragraph 2 of the complaint, was entered on record, as alleged in paragraph 3 of the complaint. 3d. Denying each and every other allegation in the complaint.
The testimony in that case was taken by the master under an order of reference for that purpose, and was reported by him to the Court. Upon this testimony, together with the pleadings, the cause was heard by his Honor, Judge Ernest Gary, who rendered his decree on the 11th of November, 1895, finding as matter of fact that the defendant, M. C. Kirven, did not execute the mortgage, which constituted the basis of that action, and he, therefore, rendered judgment that the complaint be dismissed. From this judgment the plaintiffs appealed upon several grounds, which need not be set forth here, as it is sufficient to say that they all imputed error to the finding of fact above stated, and none of them presented the question whether the Circuit Judge erred in not rendering a personal judgment for the amount due for the cash and supplies alleged to have been furnished the defendant by the plaintiffs. Upon hearing that appeal, this Court confining itself entirely to the question of fact, as to whether the mortgage had been executed by the defendant, M. C. Kirven, affirmed the judgment of Judge Ernest Gary — 47 S. C., 347. Thereupon the plaintiffs commenced the present action, and in their complaint they allege: 1st. The partnership of the several plaintiffs under the name and style of F. W. Wagener & Co. 2d. That, [33]*33between the 9th of February, 1892, and the 13th of October, 1892, they advanced money and sold and delivered goods to the defendant, amounting in the aggregate to the sum of $2,509.16, “as appears by an itemized statement of account hereto attached and marked exhibit A.” 3d. That no part of said sum has been paid to plaintiffs except the sum of $290, on the 10th of October, 1892, “and there is now due and remaining unpaid upon said account of money advanced and goods sold and delivered by the plaintiffs to the defendant, the sum of $2,219.16.” 4th. That on the 12th of October, 1892, an account was stated between the plaintiffs and the defendant, and upon such statement a balance of $2,219.16 was found to be due from said defendant to the plaintiffs. Wherefore, the plaintiffs demand judgment against the defendant for the said sum of $2,219.16, with interest thereon from the 13th of October, 1892, at the rate of seven per cent, per annum.
To this complaint the defendant answered, admitting the allegation of the partnership, but denying each and every other allegation in the complaint; and for further defense set up the plea of res judicata. By agreement of counsel the question raised by this plea was heard by his Honor, Judge Benet, before the case was regularly reached for trial, and he, for the reasons stated in his decree, rendered judgment overruling the plea of res judicata, and directed .that the case be tried on the other issues raised by the pleadings. From this judgment, defendant appeals upon the several grounds set out in the record, which, together with the Circuit decree, will be incorporated in the report of this case.
1 To determine the question raised by this appeal, it will be necessary, first, to ascertain what issues were raised and decided in the former case. That was an action on the equity side of the Court, for the foreclosure of a mortgage given to secure the payment of money alleged to be due and unpaid upon a bond., not upon an open account or an account stated, and the only issues were, jirst, whether the defendant had executed the said bond [34]*34and mortgage; and, if so, second, whether there was anything due on said bond. Now, when the Court decided that the bond and mortgage were not executed by the defendant, that disposed of both of these issues, as there could be nothing due upon a bond which defendant never executed, and hence the judgment that the coinplaint be dismissed necessarily followed. But that did not determine the question whether the defendant was indebted to the plaintiffs 07i an open accoint or upon an account stated, for there was no such allegation in the former complaint. Indeed, such an allegation there would not only have been inconsistent with, but absolutely repugnant to, the allegation which was made in the former complaint, that the defendant was indebted to the plaintiffs upon the bond; for, if that allegation had been established, then any indebtedness by simple contract on an account would have been merged in the bond, an obligation under seal, a higher security. For, as is said by Mr. Justice McGowan, in delivering the opinion of the Court, in Plyler v. Elliott, 19 S. C., at page 263: “The note and mortgage — both securities under seal — one or both — absorbed the simple obligation for the money due, and thereby destroyed the right to sue upon an indebitatus assumpsit.” It is certainly true that both the Circuit Judge and this Court considered that the controlling issue in the former case was, whether the mortgage had been executed by the defendant; and that was the only issue then decided.
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The opinion of the Court was delivered by
Mr. Chief Justice McIver.
The sole question raised by this appeal is, whether his Honor, Judge Benet, erred in overruling the plea of res judicata, set up by defendant in her answer, as a separate defense, in addition to the defense of a general denial. It appears that on the 10th of February, 1894, the plaintiffs in the present action commenced an action against the defendant herein for thq foreclosure of a mortgage on real estate, alleged to have been executed to secure the performance of the conditions of a bond, which was likewise alleged to have been executed by the said defendant. In that complaint the plaintiffs alleged: 1st. That said bond was given in consideration of an agree: ment, expressed therein, between plaintiffs and defendant, whereby plaintiffs had agreed to advance cash and plantation supplies to defendant to enable her to carry on her farming operations, during the year 1892, to an amount, therein specified. 2d. That a mortgage on certain real estate, described therein, was executed by defendant to secure the payment of said bond. 3d. That said mortgage was duly recorded. 4th. That the plaintiffs named constituted the partnership of F. W. Wagener & Co. 5th. That the plaintiffs in pursuance of their said agreement, and in consideration of the security given them as aforesaid, advanced to the defendant in cash and plantation supplies, from the 9th of February, 1892, to the 13th of October, 1892, the sum of $2,509.16, no part of which has been paid except the sum of $290, on the 10th of October, 1892. 6th. That the condition of said bond and mortgage has been broken, [32]*32and there is due and remaining unpaid upon said bond and mortgage the sum of $2,219.16, with interest, &c. Wherefore, the plaintiffs demanded judgment, “that the said mortgage may be foreclosed, and the equity of redemption barred, the premises ordered to be sold and the proceeds applied to the payment of said debt, and execution awarded for the balance against the defendant, M. C. Kirven.” To that complaint defendant answered: 1st. Admitting the allegation in paragraph 4 of the complaint, as to the partnership of plaintiffs. 2d. Admitting that a paper purporting to be such a mortgage as is set forth in paragraph 2 of the complaint, was entered on record, as alleged in paragraph 3 of the complaint. 3d. Denying each and every other allegation in the complaint.
The testimony in that case was taken by the master under an order of reference for that purpose, and was reported by him to the Court. Upon this testimony, together with the pleadings, the cause was heard by his Honor, Judge Ernest Gary, who rendered his decree on the 11th of November, 1895, finding as matter of fact that the defendant, M. C. Kirven, did not execute the mortgage, which constituted the basis of that action, and he, therefore, rendered judgment that the complaint be dismissed. From this judgment the plaintiffs appealed upon several grounds, which need not be set forth here, as it is sufficient to say that they all imputed error to the finding of fact above stated, and none of them presented the question whether the Circuit Judge erred in not rendering a personal judgment for the amount due for the cash and supplies alleged to have been furnished the defendant by the plaintiffs. Upon hearing that appeal, this Court confining itself entirely to the question of fact, as to whether the mortgage had been executed by the defendant, M. C. Kirven, affirmed the judgment of Judge Ernest Gary — 47 S. C., 347. Thereupon the plaintiffs commenced the present action, and in their complaint they allege: 1st. The partnership of the several plaintiffs under the name and style of F. W. Wagener & Co. 2d. That, [33]*33between the 9th of February, 1892, and the 13th of October, 1892, they advanced money and sold and delivered goods to the defendant, amounting in the aggregate to the sum of $2,509.16, “as appears by an itemized statement of account hereto attached and marked exhibit A.” 3d. That no part of said sum has been paid to plaintiffs except the sum of $290, on the 10th of October, 1892, “and there is now due and remaining unpaid upon said account of money advanced and goods sold and delivered by the plaintiffs to the defendant, the sum of $2,219.16.” 4th. That on the 12th of October, 1892, an account was stated between the plaintiffs and the defendant, and upon such statement a balance of $2,219.16 was found to be due from said defendant to the plaintiffs. Wherefore, the plaintiffs demand judgment against the defendant for the said sum of $2,219.16, with interest thereon from the 13th of October, 1892, at the rate of seven per cent, per annum.
To this complaint the defendant answered, admitting the allegation of the partnership, but denying each and every other allegation in the complaint; and for further defense set up the plea of res judicata. By agreement of counsel the question raised by this plea was heard by his Honor, Judge Benet, before the case was regularly reached for trial, and he, for the reasons stated in his decree, rendered judgment overruling the plea of res judicata, and directed .that the case be tried on the other issues raised by the pleadings. From this judgment, defendant appeals upon the several grounds set out in the record, which, together with the Circuit decree, will be incorporated in the report of this case.
1 To determine the question raised by this appeal, it will be necessary, first, to ascertain what issues were raised and decided in the former case. That was an action on the equity side of the Court, for the foreclosure of a mortgage given to secure the payment of money alleged to be due and unpaid upon a bond., not upon an open account or an account stated, and the only issues were, jirst, whether the defendant had executed the said bond [34]*34and mortgage; and, if so, second, whether there was anything due on said bond. Now, when the Court decided that the bond and mortgage were not executed by the defendant, that disposed of both of these issues, as there could be nothing due upon a bond which defendant never executed, and hence the judgment that the coinplaint be dismissed necessarily followed. But that did not determine the question whether the defendant was indebted to the plaintiffs 07i an open accoint or upon an account stated, for there was no such allegation in the former complaint. Indeed, such an allegation there would not only have been inconsistent with, but absolutely repugnant to, the allegation which was made in the former complaint, that the defendant was indebted to the plaintiffs upon the bond; for, if that allegation had been established, then any indebtedness by simple contract on an account would have been merged in the bond, an obligation under seal, a higher security. For, as is said by Mr. Justice McGowan, in delivering the opinion of the Court, in Plyler v. Elliott, 19 S. C., at page 263: “The note and mortgage — both securities under seal — one or both — absorbed the simple obligation for the money due, and thereby destroyed the right to sue upon an indebitatus assumpsit.” It is certainly true that both the Circuit Judge and this Court considered that the controlling issue in the former case was, whether the mortgage had been executed by the defendant; and that was the only issue then decided. For Judge Gary, in his Circuit decree in that case, said, “that the only issue in the cause is one of fact” (the execution of the mortgage sought to be foreclosed); and this Court, in its decision, said: “The sole question made before the Circuit Court was, whether the plaintiffs had established, by the preponderance of the evidence, the execution of the mortgage.” That, therefore, must be regarded as the only issue that was in fact decided, or was intended to be decided, in the former case. It may be true, that the plaintiffs might, in the former case, by amendment of their complaint, as in Sibley v. Youngs, 26 S. C., 415, have pre[35]*35sented the issue which, as we shall presently see, is raised in the present action; but no such amendment was either asked for or ordered, and hence we are of opinion that the only issue which was decided, or which could have been decided, in the former case, under the pleadings in that case, was as to the execution of the mortgage. Now, in the present case, no such issue is presented; for the only issue now presented is, whether the defendant is indebted to the plaintiffs upon an open account or upon an account stated; and the question whether the defendant executed the mortgage is entirely foreign to the issue now presented. This view is fully sustained by the case of Stoddard v. McIlwain, 9 Rich., 451. In that case, it appeared that, in a previous action, which was based upon certain notes alleged to have been signed by an agent of defendant, the verdict was in favor of defendant, upon the ground that plaintiff had failed to establish the agency. The plaintiff then brought an action against the defendant upon the open account for which said notes were purported to have been giveri, and it was held that the judgment in favor of the defendant in the previous action was no bar to plaintiff’s recovery in the second action. See, also, Sease v. Dobson, 34 S. C., 345. It seems to us that these two cases are identical in principle with the case now under consideration, and are absolutely conclusive. The case of Hart v. Bates, 17 S. C., 35, which has been recognized in numerous subsequent cases, from Ex parte Roberts, 19 S. C., 150, down to the very recent case of Anderson v. Cave, 49 S. C., 505, and which may be regarded as a leading case on the subject of res judicata, thus lays down the rule: “that a judgment is not technically conclusive of any matter, if the matter is not such that it had of necessity to be determined before the judgment could have been given.” Now, it is very obvious that when Judge Gary, in the former case, reached the conclusion that the mortgage, which constituted the basis of that action, had not been executed, there was no necessity for him to go on and inquire and determine whether the [36]*36defendant was indebted tb the plaintiffs on some other ground than that alleged in the complaint. Indeed, it is very doubtful, to say the least of it, whether he had the power to do so under the then state of the pleadings. It is clear, therefore, that the issue now presented, to wit: whether the defendant is indebted to the plaintiffs on an open account or on an account stated, as alleged in the present complaint, was never, in fact, decided in the former action, nor was it necessarily involved in the judgment then rendered, and hence that judgment is no bar to the present action.
2 It is true, that Judge Benet does say in his judgment that “in the former action the plaintiffs sought a strict foreclosure, and did not ask for a personal judgment against the defendant;” and that statement is not strictly accurate, as the plaintiffs did demand a personal judgment for the balance against the defendant, after the proceeds of the sale under the mortgage had been applied to the debt. What he, doubtless, meant was, that no personal judgment was demanded for the whole amount of the debt. But be that as it may, we have only to determine whether the conclusion reached was correct, and have nothing to do with the reasons or statements upon which the conclusion was based; therefore, it is not material to consider whether such reasons are well founded.
The judgment of this Court is, that the judgment appealed from be affirmed, and that the case be remanded to the Circuit Court for the trial of the other issues raised by the pleadings.