ter is not open to inquiry here. The judgment upon the demurrer is a finality as to any claim of the Culvert Company against the township, on open account for goods and material sold and delivered to the township, upon the grounds that the claim was barred by the Statute of Limitations, and that the claim had never been presented for auditing and allowance.

It is immaterial whether the trial court was correct in its ruling upon the demurrer of the township in the former suit by the Culvert Company on the account for goods sold and delivered to the township, as that mat

(51 Okla. 178, 151 Pac. 854.)

ment to be entered on the merits in the action on the account. It seems to be established that the Culvert Company could not maintain the action on the account if the warrant had been received by it in liquidation of the account, unless upon the trial it produced the warrant, or satisfactorily accounted for its absence. The township could not be twice subjected to the payment of the same debt. If, perchance, the company had obtained judgment on the original cause of action, then if the warrant had gotten into the hands of a bona fide holder, the judgment rendered on the consideration for the warrant would not absolve the township from paying the warrant. Jack son v. Brown, 102 Ga. 87, 66 Am. St. Rep. 156, 29 S. E. 149.

It follows as a logical sequence that the company could have brought its action on the indebtedness, as it did in the first instance, and maintained that action by producing the warrant, or satisfactory reasons for its failure to do so; or it could have brought the action upon the warrant alone. It would have been a question of fact as to whether the warrant was given and received in liquidation of the open account.

The plaintiff had only one cause of action, and when the demurrer was sustained it was the duty of the company to have amended its petition, setting up the warrant, thus taking it out of the bar of the statute. But in that action the company made no reference to the warrant nor did it offer to surrender the same, so it follows that, had plaintiff in error recovered in the former case, it

same

would be in possession of both judgment and warrant for the same amount, representing the transaction, by failing to plead all of the facts constituting its claim for judgment.

We think that plaintiff in error will not be heard to complain, when it speculated upon the outcome of the action on the account, and when judgment was rendered upon the demurrer adverse to it, then, without appealing, brings an action on the warrant representing the same transaction, and is met quent action on by plea of res judi

-on open account-subse

warrant.

cata. We are of the opinion that plaintiff is estopped in this action.

Plaintiff in error contends that, where a party mistakes his remedy, he should not be precluded from bringing another action, but this rule is not applicable here, because the plaintiff in error was entitled to waive the warrant and bring the action on the open account. If it had, by mistake, attempted to pursue some remedy that it never was entitled to, then it would not be prevented from subsequently availing itself of a remedy that it was entitled to under the facts in the case; but, having pursued a remedy it had a right to invoke, plaintiff in error cannot avail itself of the doctrine of mistake

of remedies in order to evade the doctrine of res judicata.

We therefore recommend that the judgment of the trial court be affirmed.

By the Court:
It is so ordered.

ANNOTATION.

Judgment against claim based on original form of indebtedness as res judicata as to claim based on new or substituted obligation.

I. Scope, 1174.

II. Bar as dependent on ground on which former judgment was rendered, 1174.

III. First action defeated because of existence of substituted obligation, 1177.

IV. Action to enforce lien after judgment
denying recovery on indebtedness,
1178.

V. Substituted obligation as
in first action, 1179.
VI. Miscellaneous caser 1179.

evidence

1. Scope. It should be noted that the title of this note limits it to cases in which the first action is brought on the original indebtedness, and the subsequent action on a substituted obligation or evidence of the indebtedness. It therefore excludes cases in which the first action is brought on the evidence of the indebtedness, and the later action on the original indebtedness. While this is probably included in what has just been said, it may be said specifically that cases are not included in which plaintiff, after being defeated in an action on an express contract, sues on quantum meruit; but cases in which the first action was on quantum meruit, and the later action on an express contract, have been included, if they bear on the question of res judicata.

Questions as to the conclusiveness of a judgment in favor of the principal debtor, in a subsequent action against his surety, and all questions of election of remedies where the first action has not proceeded to judgment, have also been excluded.

dered on some ground sufficient to give it that effect.

While the cases discussed in this note are not very explicit on this point, they apparently point to the conclusion that the causes of action on the original and substituted obligations are not the same, and that the conclusiveness of the former judgment depends on the ground on which it was rendered.

II. Bar as dependent on ground on which former judgment was rendered. When a second suit between the same parties is on the same cause of action, the judgment in the former suit is conclusive not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined; but when the second action is on a different claim, or demand, or cause of action, the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined. 15 R. C. L. 963, 973. From these rules it would seem to follow that if an action on the original indebtedness, and an action on a new or substituted obligation, are regarded as based on the same cause of action, any judgment on the merits in the one action would be res judicata in the other action; but if they are regarded as based on different causes of action, the judgment against the claim based on the original indebtedness is not res judicata in an action on a new or substituted obligation, unless ren

Minnesota. LEONARD V. SCHALL (reported herewith) ante, 1166.

New York. Slauson v. Englehart (1861) 34 Barb. 198; Piper v. Hayward (1911) 71 Misc. 41, 127 N. Y. Supp. 240.

South Carolina.-Pickens v. Bryant (1895) 45 S. C. 17, 22 S. E. 750.

South Dakota.-Child v. McClosky (1900) 14 S. D. 181, 84 N. W. 769. Texas.-Douglass v. Blount (1901) Tex. Civ. App. -, 62 S. W. 429, reversed on another ground in (1902) 95 Tex. 369, 58 L.R.A. 699, 67 S. W. 484; Brown v. Crumpton (1915) Tex. Civ. App., 181 S. W. 540.

Thus, in Palmer v. Sanger (Ill.) supra, plaintiff had presented a claim against a decedent's estate, one item of which was for money loaned by decedent for plaintiff, the repayment of which decedent guaranteed; another item was for the amount of a note and mortgage given as collateral or additional security for the repayment of the money so loaned. The item on the note and mortgage was withdrawn and not passed on, but the other item referred to was claimed to have been disallowed. It was held that the judg

ment did not bar an action to foreclose the mortgage, the court saying that the item might have been disallowed, because the guaranty referred to was a mere verbal promise to pay the debt of third persons, because the evidence was insufficient to establish such verbal guaranty, or because the amount for which decedent was liable could not be ascertained until the security in which the moneys loaned were invested were foreclosed, or otherwise disposed of; and that, therefore, as it did not appear that it was disposed of by the court on any issue which necessarily determined the right of plaintiff to recover on the note and mortgage, the judgment of the probate court was not res judicata.

And where money which a devisee was required to pay annually to the testator's widow was declared a lien on the land, and part of a claim against the devisee's estate for arrears in such payments was disallowed, because barred by the Statute of Limitations applicable to implied promises, it was held that the judgment was not res judicata so as to prevent the bringing of an action to enforce the lien on the land for the disallowed portion of the claim. Stringer v. Gamble (Mich.) supra.

A judgment for defendant in an action by an assignee of an alleged account for goods sold, rendered on the ground that there was no such transaction as the alleged sale, and no account in fact between the assignee and the defendant, does not bar an action by the same plaintiff on a note given in consideration of such claimed sale, of which plaintiff is a bona fide holder. Slauson v. Englehart (N. Y.) supra. The court said: "A judgment, to constitute a bar, must, as all the cases agree, be upon the very point in issue. Both actions must be, in substance, and in point of law, identical, and the same evidence admissible and to some extent controlling in both. ... But if the second action involves no inquiry into the merits of the former judgment, and is sustainable on grounds entirely independent of such former judgment, it is not barred. That is precisely the case here.

The only material inquiries in this action were: first, whether the defendant made and delivered the note to Goodwin; and, second, whether the plaintiffs took it in the usual course of deal before it fell due. If this was so it was wholly immaterial, so far as the rights of the plaintiffs were concerned, whether there was ever any bargain and sale, or any subsisting account between Goodwin and the defendant, or not. The point determined by the judgment was wholly immaterial upon either of these issues, and was incompetent evidence to establish a bar."

An action to enforce a lien on stock delivered as collateral security for the payment of a note is not barred by a decree of a probate court, providing that plaintiff shall be forever barred from maintaining any action on the note, by his failure to bring an action thereon after the rejection of his claim on the note by the maker's administratrix. Piper v. Hayward (1911) 71 Misc. 41, 127 N. Y. Supp. 240.

And a judgment for defendant in an action on notes secured by a vendor's lien, in which defendant defeated personal liability on the note on the ground that, with plaintiff's knowledge and consent, he took title to the land and gave the note at the request of the real purchaser, was merely an adjudication of his personal liability on the note, and did not constitute an adjudication against plaintiff's right to enforce the lien. Douglass v. Blount (1901) - Tex. Civ. App. —, 62 S. W. 429, reversed on another ground in (1902) 95 Tex. 369, 58 L.R.A. 699, 67 S. W. 484.

A judgment sustaining a demurrer to a complaint in an action to foreclose a mortgage, on the ground that on the facts set forth in the complaint the debt is barred by limitations, does not bar another suit to foreclose the same mortgage, in which a renewal of the secured note within the period of limitation is alleged. Newhall v. Hatch (1901) 134 Cal. 269, 55 L.R.A. 673, 66 Pac. 266. The court said: judgment rendered upon sustaining a demurrer to the complaint, upon the

“A

ground that the facts stated therein do not entitle the plaintiff to a recovery, will be a bar to an action for a recovery upon the same facts; but if other facts are stated which supply the defects in the first statement, or which present a different cause of action, the judgment upon the demurrer will not be a bar to the second action."

A judgment for defendant in an action on a note due a decedent, brought by one who alleged that he had been constituted and appointed trustee and agent for the heirs at law and distributees to collect the assets of the estate and pay the debts, rendered on the ground that he had no legal capacity to sue, is not res judicata in a new action, in which it is alleged that defendant was a party to the deed appointing plaintiff for the purposes stated, and, for a valuable consideration, promised therein to pay the note to plaintiff. Pickens v. Bryant (1895) 45 S. C. 17, 22 S. E. 750.

zens contracted with O. to pay him
$50,000 for having a railroad built,
and he agreed with the railroad com-
pany to pay it a like amount for build-
ing the road; the citizens guaranteed
the payment of such sum, and execut-
ed their notes to O., and placed them
in the hands of a special committee;
the road apparently was built, and the
company sued the guarantors on their
guaranty, and O. sued the road; a
compromise judgment was entered in
favor of the guarantors in the action
against them, in consideration of the
special committee's agreement to de-
liver the notes to O., which was done.
It was held that the judgment was not
res judicata of the liability on the
guaranty contract, and did not bar an
action by O.'s transferees on the note.

In Barber v. Mulford (1897) 117 Cal. 356, 49 Pac. 206, the board of education of a school district ordered a bill paid, and a warrant was drawn, which, however, was not drawn, as it should have been, on the county school superintendent, and therefore was not paid. Plaintiff thereafter sued the district on the original debt, and judgment was rendered against him. It was held that he was not thereby estopped from bringing a proceeding for a peremptory writ of mandate, requiring the board of education to issue an order in his favor on the county school superintendent. The court pointed out that the object of the first action was to recover on the original account, while the purpose of the second proceeding was to enforce performance of an official duty, treating such account as an audited demand against the district, and said: "While it is possible that issues may have been raised and determined in that case which go to the merits of this, it is certainly not made apparent that such was the fact, and the defense based on the former action and judgment must be overruled."

In Brown v. Tex. Civ. App.

-

Crumpton (1915)
181 S. W. 540, citi-

But a judgment for defendant in an action for the purchase price of a plow purchased by his alleged agent, in which he introduced evidence that the alleged agent had no authority to buy the plow, and in which the jury evidently took this view, is conclusive in his favor in a subsequent action on a note which the alleged agent transferred to plaintiff in payment of the plow, or as collateral security, executing a guaranty of its payment in defendant's name, where no authority for the transfer of the note is shown unless he had authority to purchase the plow, and it is not in fact claimed that he had authority to transfer the note independently of his authority to purchase the plow. Child v. McClosky (1900) 14 S. D. 181, 84 N. W. 769.

A judgment for defendant on demurrer in an action for goods sold to a township is res judicata in an action on a warrant of the township issued for such indebtedness, though rendered on the ground that the action was barred by limitation, which apparently was not true of the action on the warrant. This holding in CORRUGATED CULVERT Co. v. SIMPSON TWP. (reported herewith) ante, 1170, is apparently based on the theory that plaintiff had only one cause of action, and that, when the demurrer was sus tained, plaintiff should have amended the petition by setting up the warrant. This decision would seem to be in con