
    Ayres v. Mihal.
    
      Judgments—Action for breach of contract to purchase automobile—Barred by former judgment for purchaser on purchase money note.
    
    
      'Where there is an express contract for the* sale of an automobile, which was never delivered, and suit is brought by the seller against the purchaser on a note given for ¡ the purchase price, and the purchaser defends the suit on the ground that the seller breached said contract by failing to deliver the automobile, and upon trial of such case a judgment is properly rendered for the purchaser, which judgment is not reversed or modified, such judgment constitutes a complete defense to a subsequent action brought by such seller against the purchaser for damages for the breach of such express' contract of purchase.
    (Decided February 11, 1927.)
    Error: Court of Appeals for Summit county.
    
      Mr. Lee J. Myers, for plaintiff in error.
    
      Mr. C. G. Roetsel, for defendant in error.
   Washburn, P. J.

In the court of common p'leaa plaintiff sued the defendant to recover damages for the breach of a written contract by which defendant agreed to purchase an automobile from plaintiff. As a defense, the defendant pleaded that in a former suit brought by plaintiff against defendant a judgment was rendered in defendant’s favor, and in such former suit it was determined that plaintiff, and not the defendant, breached the contract, and that said judgment was a valid and subsisting judgment and a bar to said second suit.

The question whether or not such judgment was a bar was submitted to the trial court upon the “evidence and the statements and admissions of counsel for both parties.”

From such evidence and statements it appears that there was a contract for the sale by plaintiff to defendant of an automobile of a certain model; that a note was given by defendant to plaintiff for the purchase price, but no automobile was delivered by plaintiff or accepted by defendant; that plaintiff sued defendant upon said note, and as a defense thereto defendant pleaded that the consideration for the note was said automobile, which plaintiff agreed to deliver at once, but which he did not deliver “and informed defendant that he could not make delivery as agreed;” that said automobile had never been tendered to the defendant; and that “by reason of the failure of plaintiff to perform said contract, the consideration for said note has wholly failed.”

Defendant also pleaded another defense to said note.

In said first case plaintiff failed to deny the allegations of said answer, although counsel admit that the court in the trial of that case suggested that a reply be filed and upon plaintiff’s failure to do so granted the motion of defendant for judgment upon the pleadings and discharged the jury. In said second trial it was agreed that said judgment rendered in the first trial was in full force and effect.

The court in the second action, which is the one here for review, determined that the judgment in the first action was a complete defense to the second suit, and rendered judgment for defendant.

“3. When the second suit is upon the same cause of action and between the same parties as the first, the judgment in the former is conclusive in the latter as to every question which was or might have been presented and determined in the former.

“4. When the second suit is upon a different cause of action but between the same parties as the first, the judgment in the former action operates as an estoppel in the latter as to every point and question which was actually litigated and determined in the first action, but it is not conclusive relative to other matters which might have been, but¡ were not, litigated or decided.” Union Central Life Ins. Co. v. Drake, (C. C. A.), 214 F., 536, at page 537.

See, also, Dalton v. American Ammonia Co., 231 Mass., 430, 121 N. E., 407.

“Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subsequent action, whether the second action is upon the same or a different subject-matter from the first. In this respect it is immaterial that one of the actions may have been ex contractu and the other ex delicto.” Hixson v. Ogg, 53 Ohio St., 361, 42 N. E., 32.

While it may be true that if a plaintiff has mistaken his legal remedy, or the proper form of action, and judgment goes against him for that reason, the judgment is no bar to a second action rightly brought, and that a judgment in order to operate strictly as a bar to a subsequent action must have gone to the merits of the subsequent action, we think that the trial court was right in the judgment rendered in the action here under review.

In the first action the defendant alleged, as a defense, that the consideration for the note sued on was the promise made by the plaintiff in said contract and that such promise had not been fulfilled, and that allegation being admitted the court found that such breach of the contract by plaintiff entitled defendant to a judgment.

The breach of said contract by the plaintiff would preclude him from recovery in his second action, just as under the issues as ¡made in the first action plaintiff’s breach of the contract was a good defense to the note sued upon, and whether the plaintiff or the defendant breached said contract was a point or question which was involved and actually litigated and determined in the first action; in other words, the record discloses that in the first action a defense, good as to the second action as well as to the first, was presented by the pleadings and was passed upon by the court in the first action, and there determined in favor of the defendant, hence such defense, having been established as a finality between the parties, is a final and conclusive defense to the second action.

It has been noted that in the first suit the defendant pleaded a defense to' said note in addition to the defense which has just been considered, and it may be claimed that as there is nothing in the record by which it may be determined which defense was the basis of the judgment it cannot be said that the defense we have considered was passed upon and determined in said first suit, and that therefore the rule of estoppel by judgment cannot be applied.

It is true that the judgment was general, and that no evidence was offered, if any was competent in this particular case, to show that the judgment was based upon one particular defense, but where two separate defenses to a single cause of action are pleaded, which defenses are strictly defensive, and each goes to the merits of the case, and both are admitted because not denied, and there is a general judgment for the defendant on the pleadings, and there is no showing that the' court based such judgment solely on one defense, the presumption should be that both defenses were adjudicated in favor of the defendant.

“Where the jury, by their verdict, ‘find the issues joined in the cause’ in favor of one of the parties, this is to be taken as a verdict finding each and all of the issues therein for such party.” Sites v. Haverstick, 23 Ohio St., 626.

And where the trial is to the court, a jury being waived, and the court finds on the issues joined with the defendant, the finding is as to each and all of the issues. Topliff v. Topliff, 8 C. C., 55, 4 C. D., 312.

In the first case, the plaintiff admitted that two facts were true, either one of which justified a judgment against him, and if the presumption is not indulged that both facts were adjudged against him by the general judgment in favor of his opponent then said judgment cannot be said to have found either fact against him, and the judgment would not be final as, to either defense, and nothing would be settled and determined thereby. Under such circumstances, the burden ought to be on the plaintiff to overcome such presumption.

But an examination of such other defense in the first case discloses that it also involved the question of plaintiff’s breach of the contract. In that defense the defendant alleged that if he signed the note sued on he was induced to do so by the false representations of plaintiff, and that it was for an automobile “the delivery of which was to be made to him at once,” and that it “was not delivered to him as agreed upon, and that he has never received same and that there is no consideration for said instrument.”

Those facts being admitted, it was established that plaintiff could not recover on the note because by the breach of his contract he had withheld the consideration for the note. The fact of his breach of his contract being conclusively established, he could not maintain his second action. Therefore, if either or both defenses are considered, it is plain that in the first action the court found that the plaintiff breached the contract sued on in the second action, and such fact being conclusively established, and being a defense to the second action, the judgment therein in favor of the defendant is not erroneous.

Judgment affirmed.

Funk and Pardee, JJ., concur.  