
    Charles F. Gall, Appellant, v. Amelia Gall, as Administratrix, etc., of Joseph Gall, Deceased, Respondent.
    
      JSes- adjudieatq —the judgment in an action, for the specific performance of a Contract to 'make a will in one’s favor in return for services, does not bar a subsequent action, for the services — when the court cannot retain an equitable action so that the . plaintiff may recoves' damages. • • •.
    The judgment of a court of competent jurisdiction’is, as between the parties to the action, as-a plea, a bar, and, asevidence, conclusive in any subsequent litigation where the same question is presented, but an estoppel does not take place unless there has been; or unless, under the issues as framed, there might have been,- . an adjudication-.upon the precise point in question.
    There is a well-established distinction as to the effect of the estoppel between a- : case where the causes of action, were the same in the adjudged case and in that in which the estoppel is pleaded,, and a case where the judgment was upon a different cause of action from that in which the estoppel is set up. In the second case a judgment is not an estoppel as to any facts except those litigated and decided therein and having such a relation to the issue that their determination" was necessary to the determination of that issue.
    An action brought to procure the specific performance of an alleged agreement on the part of the defendants’ intestate to make a will in favor of the plaintiff in return for certain services to be rendered by the plaintiff to the intestate, and decided against the plaintiff’s contention, upon the ground that there was no agreement to make a will, is not a bar to a subsequent action brought by the plaintiff against the same defendants to recover for the value of the alleged services.
    The causes of action are not identical, for the reason that in the first action the nature and extent of the services must necessarily be a matter of secondary importance bearing only upon the question of their sufficiency as a consideration for the agreement to make a will in favor of the plaintiff, while in the sec- . ond action the plaintiff must prove the rendition of the services, their value, and that he had not been paid for them, as the basis of his action.
    Where an action in equity is brought in the Supreme Court to procure the specific performance of an agreement to make a will in favor of the plaintiff, the court has no power to retain the action as one at law, to the end that the plaintiff may recover damages for the failure of the intestate to- perform the contract in question, as the court, upon finding that the plaintiff is not entitled to equitable relief, has no power to assess damages, but must dismiss the complaint.
    Appeal by the plaintiff, Charles F. Gall, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of February, 1897, upon the dismissal of the complaint directed by the court, after a trial before the court and - a jury; also, from an order entered in said clerk’s office as of the 25th day of January, 1897, denying the plaintiff’s motion for a new trial, and also from an order entered in said clerk’s office as of the 25th day of January, 1897, granting the defendant an extra allowance of $1,000.
    
      Benjamin If. Gardozo, David Leventndtt and Ira Leo Bamberger, for the appellant.
    
      A. Smiis, Jr., for the respondent.
   Rumsey, J.:

Joseph Gall, of the city of-New York, died in that city in May, 1886, being the owner of a large amount of personal property and real estate. .The defendant Amelia Gall was appointed administrat-rix- of liis estate. Shortly -after the. appointment the plaintiff, here commenced an action " against Amelia Gall as' adminsti'atrix of Joseph Gall and others who: are. alleged to be interested in, his estate.. The complaint in that action alleged’ that in the year 1882 the plaintiff,, who was a nephew of Joseph Gall, was engaged ' in a profitable business in the city of San -Francisco in the State of California. It was further alleged that .Joseph Gall, in considera- - tion of-the fact, that lie was. childless, and in consideration of the plaintiff’s doing -certain things set forth in the complaint, agreed to' make liis last Will and testament, wherein, after certain legacies to-be made to certain defendants as mentioned in that action, he undertook .and promised to leave the- remainder of his estate, both real and personal, to the- plaintiff. The consideration on ..the part of the plaintiff for that- agreement .Was that .he should give- up and abandon his business in California, take up' hi's residence with Joseph Gall in the city of -Slew York, enter into- his business and' adopt-hi's name. ■ The complaint further alleged the performance by . the plaintiff of every part of the agreement on his. part.. It further alleged that Joseph Gall did make a -will substantially carrying- out. liis agreement- on, the' 3d day of April, 1883, but that, afterwards, by a codicil, the will was' materially changed. . The complaint alleged-further that after the making of the will and codicil J osetih Gall intermarried with the defendant Amelia Gall, and that two of the-defendants named. Betsy A.'-'Gall and Caroline Gall, were the children of that marriage, and that by .the marriage and the birth of the children the Will was: revoked. The relief - demanded in the complaint was substantially that tlie agreement made between the plaintiff and Joseph Gall b'e specifically performed, and that, the 'property of which J oseph Gall died seized should be transferred to the plaintiff, .subject, however, to the payment' of . the legacies which, by the will of April 3,1883, .were- left to certain of the defendants named in' that action, as- Was agreed between the plaintiff and Joseph Gall. JSTo other relief was demanded. There was no specific allegation in the complaint in that'action as to the rendition of any services by the plaintiff to Joseph Gall, nor as to' the value of any of the acts-which were performed by. him as a consideration for the agreement to make the will, nor.was there any demand for a money judgment against Joseph Gall’s estate. Upon the tidal of the action it was found by the court substantially that the plaintiff did give up his business in San Francisco about the 15th of November, 1882, and lived with the said Joseph Gall and cared for him until his death and went into the business of Joseph Gall; and that the plaintiff also procured his name to be changed from Charles Funkenstein to Charles Funkenstein Gall. But it was also found in that action that there was no contract made between' the said Joseph Gall and the plaintiff to make a will in favor of the plaintiff, as set forth in the complaint, and for that reason the plaintiff was defeated and judgment was finally entered dismissing the complaint in that action.

Subsequently plaintiff brought this action against the defendant Amelia Gall, as administratrix of the estate of Joseph Gall, deceased. . It is alleged in the complaint in this action that from the 15th day of November, 1882, down to the 22d of May, 1886^ the plaintiff performed certain work, labor and services at the instance and request of Joseph. Gall, deceased, for which Joseph Gall promised and agreed to pay him, and that said services were worth $40,000, and that said Gall had not paid anything therefor. In this action a money judgment was asked for the value of the services. Among other defenses, the answer set up the judgment in the action for specific performance as a bar to the maintenance of this action. Upon the trial, after the plaintiff had made proof tending to establish his cause of action, the judgment roll in the former action was read in evidence, and thereupon, against the objection and exception of the plaintiff, the court ruled that it was a bar to the maintenance of this action by the plaintiff and for that reason dismissed the complaint.

The question presented upon this appeal is only whether the judgment in the former action operated as- a bar to the maintenance of this action' by the plaintiff. The rule of law which obtains in such a case is not at all doubtful. Generally stated, it is that the judgment of a court of competent jurisdiction between the parties is as a plea, a bar and as evidence, conclusive in any subsequent litigation where the same question is presented. But the estoppel does not take place unless there has been, or under the issues, as framed, might have been, an adjudication upon the precise point in question. (Embury v. Connor, 3 N. Y. 511.) Whether that has taken place depends upon the purpose for which the two actions weré brought. ’ There is a well-established distinction as to the effect of the estojipel between a case where-the causes .of action were the same in the adjudged ease and in that in which the estoppel ‘is pleaded, and a case where the judgment was upon a different cause of action than' that in which the estoppel is ■ set up. In tlie second case a judgment is not an estoppel as to any facts except those litigated and decided therein and having, such a relation to the issue that their determination was ■necessary to the determination of that issue: (House v. Lockwood, 137 N. Y. 259.) But where a particular claim has been once litigated and determined between the parties, the judgment entered in that action is conclusive between them in all subsequent actions, not only as to every'fact which was -.actually litigated, but as to every fact which-ought to have been litigated in the former action. (Big. Estop. [4th ed.] 145.) When one brings an action upon any question, , he is bound to present to the court, all the facts which go to establish ' that claim, and" the defendant, in opposing the claim, is also bound to present to the court - every defense which he - may have against it. The judgment entered upon that claim .is, conclusive,, therefore, not only as to--every ground of making the claim, but as to- 'every ground of defense which -might have been urged to it, and for that reason, a .particular cause of action having once been decided between the parties, the judgment upon -that cause of -action is conclusive, and it can never be litigated,' although different reasons for its validity and different grounds of defense might have been presented than were presented in -the former-action.

. Bht this strict rule does'not apply unless the causes of action . were identical, and the same evidence must be given to establish each- one. The distinction-is laid down in the leading case of Cromwell v. Sac County (94 U. S. 351). The rule as laid- down above is adopted as the true rule of decision, and the distinction- between the effect of' an adjudication where the same cause of action is sought "to be' litigated-the second time, and where facts formerly litigated are incidentally brought into another action, is -explained arid established. ' .. . ■ '

-. In the- case of Marsh v. Masterton (101 N. Y. 401) the -plaintiff had'brought an'action alleging that at -a certain time he entered - into partnership with the defendant; that the two 'partners were to shave equally in the profits of the business; that the business had- been carried on profitably for a certain time, and then the partnership dissolved, and he demanded an accounting and the payment to him of such portion of the profits as he should be entitled to. Upon the trial it was found that there never had been any partnership between the parties, and, as a consequence, the complaint was dismissed. The plaintiff then brought another action against the same defendant, alleging that at the time at which it was alleged the partnership had been formed he entered into an agreement "with the defendant to take charge of the business of the defendant and carry it on arid work in that business, and that in consideration of his services the defendant agreed to pay him one-half of the profits derived from the business, and he sought a money judgment for the amount agreed to he paid. The defendant sought to set up on the second case the judgment in the first case as a bar, but it was held that the cause of action was not the same, and, therefore, the former adjudication was not an estoppel. The same rule was laid down where the question was presented in another form in Stowell v. Chamberlain (60 N. Y. 272), and in Bigelow on Estoppel (4th ed., 145 and following pages) a large number of cases establishing the same rule are cited and commented upon.

It is.apparent then that the important question upon this appeal is whether the two causes of action in the two suits between the parties hereto are the same. The cause of action in the first case was for the specific performance of an agreement to make a will. The question presented was whether such an agreement had been made by Joseph Gall. Upon that question the rights of the parties-depended. . The fact of the rendition of services was material only as it afforded a consideration which would he in equity sufficient to compel the specific performance of such an agreement if it had been made, but in all other respects the fact of the rendition of the services was entirely immaterial. Uor was the value of those services material in any respect whatever. The case turned entirely upon the question whether Joseph Gall in his lifetime entered into an agreement to make a will as alleged in the complaint in that action. This fact would have been very plain had the alleged agreement been reduced to writing when the form of its statement would have been, “ in consideration of certain services to be rendered tó me I agree to devise all ray property, except certain legacies,'tó Charles F. Gall.” Had the agreement, reduced to writing, been shown, it would be very evident that the nature and extent of the services would have been a matter of secondary importance, bearing only upon the question of their sufficiency as a consideration for the particular agreement which was alleged, In" the second " action, however, the services them selves and-tlieir rendition lay at the basis of the action, To enable the plaintiff to. recover, he would be required to prove the rendition of the services - and their value ■and that he had not been paid for them. Every particle of that .proof could’be made without necessarily using any of the • evidence, required upon the former action, except the mere fact that, tlie services-had been, rendered. Beyond that and outside of that "the two ■ things were entirely separate. ; The case is precisely,- in that regard," . like the case of- Marsh v. Masterton (supra). We think, therefore,that the causes' of" action, were not identical and that, the judgment in the first case was a bar only as to those facts which were necessarily. ■litigated.in the former action, if" there, were any such facts.

But it is claimed that the judgment in tlie other action was a bar, ' because, as the Supreme Court has jurisdiction in law and equity alike, it was competent for the court, having decided that the plain- ■ tiff was not entitled-to equitable relief,'to retain the action,- that the plaintiff might recover damages for tlie failure to perform the contract which he alleged in the complaint. To this contention, how- ■ ever, there are. two perfect answers. In the first, place, the- only contract alleged.in the former action was the contract to" make a-will. That contract was not proved, as was found" by the court, and that being so tliefe was no reason why the court- should retain the action for the purpose of giving damages for tlie breach of a contract which was not proved. In the second place,"the case was", not one which the court could retain, that the plaintiff might recover damages. The .question is not merely a.question of the mode.of trial. It goes further than that. The cause -of action alleged in the complaint in the" first action was purely one in equity. There was no aspect of it in which a court of law could have jurisdiction^ for the relief demanded was only such as could .have been given by a "court of equity. It was not a case where, the contract being conceded, the -question" was whether, in the discretion .of the court, specific performance should be .directed, or the action retained for damages because it was not a proper one in which to decree specific performance; It was purely an action for equitable relief, and for nothing else. There was no basis in the complaint or in the facts proved for the granting of legal relief of any kind whatever, but if the plaintiff failed to prove his case the only remedy was to order judgment against him. It is a well-settled rule that in an action commenced upon a contract as an action in equity, wherein the plaintiff seeks only equitable relief, the court, if it finds that the plaintiff is not entitled to equitable relief, cannot, upon facts appearing upon the trial which would warrant an action by the plaintiff for damages, but which are not alleged, assess damages, but it must dismiss the complaint. (Bradley v. Aldrich, 40 N. Y. 504; Dudley v. Congregation of St. Francis, 138 id. 451; Hawes v. Dobbs, 137 id. 465, 470.)

For these reasons we think that the court erred in holding that the judgment in the equitable action was a bar to the maintenance of this action by the plaintiff, ahd that the judgment and order must be reversed and a new-trial granted, with costs to the appellant to abide the result of the action.

O’Brien, Williams, Ingraham and Parker, JJ., concurred.

Judgment and order reversed, new trial granted, costs to appellent to abide event.  