
    Porter v. Wagner.
    1. A judgment of dismissal of a petition for the specific performance of an agreement and of a counter-claim asking a rescission of the same, is no bar t.o an action for the recovery of money paid on the agreement, although the cause of action accrued before the rendition of the judgment.
    2. Where a judgment between the parties is relied upon as an estoppel, the question is not what the court might have decided in the former action, but what it did in fact decide, as shown by the judgment.
    3. A judgment is conclusive by way of estoppel only as to facts, without the proof or the admission of which it could not have been rendered.
    Error to the District Court of Trumbull County.
    Tbe original action was brought by the plaintiff in error,' George H. Porter, against the defendant in error, Henry Wagner. Porter and Wagner had entered into a written agreement whereby the latter agreed to sell and convey to the former certain real estate; and the petition avers that in consideration that the plaintiff, Porter, would release the defendant, Wagner, from the obligations of the contract, the defendant promised the plaintiff and undertook that the said contract should be rescinded, and that he would repay to the plaintiff the sum of $1,000 whicli he had paid on the contract, and also the sum of $10 taxes paid on the land. Judgment was asked for these sums.
    
      Among other defenses, the defendant set uj> that the matter in controversy had been adjudicated in a former suit between the parties. This defense was controverted by reply.
    On the trial it appeared that Wagner, the vendor, in the former suit, had filed a petition for the specific performance of the agreement for the sale of the real estate; and that Porter in his answer to the petition controverted the right of Wagner to have specific performance of the agreement, and charged him with numerous defaults under the agreement. Porter also charged that in consideration that he would release Wagner from the agreement of purchase, the latter promised to repay the $1,000 paid on the agreement, and $10 taxes paid by Porter.
    • The defendant prayed “ that said contract may be declared rescinded, and the plaintiff ordered to repay said sum of money to respondent, with interest, and for other proper relief.”
    The answer was controverted by reply.
    The following was the decree rendered in that suit:
    
      “ This cause^ came on for trial upon the issues joined and the testimony, and was submitted to the court for decision, and the court thereupon find that the plaintiff is not entitled to an order for the specific performance of said contract, and the defendant is not entitled to an order for the rescission of said contract, and do therefore order, adjudge and decree that said petition and counter-claim be dismissed, and that plaintiff pay all costs in this cause made before appeal, and that defendant pay all costs made since said appeal, and that execution issue to collect the same.”
    On the trial of the case now under review, the plaintiff asked the court'to charge the jury as to the effect of the decree in the suit for specific performance, in substance, as follows : That the decree did not bar the plaintiff’s right of action in this cause, if the jury should otherwise find the issues in favor of the plaintiff.
    The court refused so to charge; but charged, in substance, that said decree was a conclusive bar to the right of the plaintiff to recover either on account of said alleged agreement to rescind said contract, or on account of said original contract and the breach thereof, if not rescinded.
    To the refusal to charge as asked, and to the charge as given, the plaintiff excepted. • ;
    Yerdict and judgment were for the defendant. On error, the judgment was affirmed by the district court. The present proceeding is instituted to reverse these judgments.
    
      George M. Tuttle, for plaintiff in error:
    The simple refusal of the court having equitable jurisdiction to aid the party asking for specific performance of an agreement, does not bar the right of the same party to proceed in the proper jurisdiction to recover back the money paid. Love v. Truman, 10 Ohio St. 53; Rogers v. Atwater, 4 Day, 432 ; Railroad Co. v. Hunt, 20 Ind. 468 ; Hunter v. Dawes, 19 Geo. 413; Griffin v. Seymour, 15 Iowa, 30; Morley v. Shattuch, 3 Cranch, 458; Church v. Chapin, 35 Vt. 223; 1 Greenl. Ev. § 524; 2 Cow. & Hill’s Notes (ed. 1839) 826, note 587 ; Jackson v. Ashton, 11 Pet. 248 ; Seymour v. Delancey, 6 Johns. Ch. 223; Campbell v. Hicks, 19 Ohio St. 433; Twining v. Morrice, 2 Brown C. C. 326; Emery v. Wase, 5 Vesey, Jr. 845, 849; 13 Ves. 25, 38; 1 Vesey, Jr. 213; 4 Johns. Ch. 591; 5 Johns. Ch. 195.
    
      H. H Moses, for defendant in error:
    The plaintiff’s right to recover the money claimed in his petition in this case, was made an issue in the former case, and was submitted to the court for decision, and, consequently, he might have had his right to a judgment for the money claimed decided by the court. If he neglected to have the court pass upon that branch of his case, it was his own fault, and he cannot now complain, or again have the opportunity of litigating his claim. Stockton v. Ford, 18 How. U. S. 418; Hites v. Irvine, 13 Ohio St. 284; Wilson v. Hamilton, 9 Serg. & R. 429; Embury v. Connor, 3 N. Y. 512; Gates v. Preston, 41 N. Y. 113; Harris v. Harris, 36 Barb. 88; Bigelow v. Windsor, 1 Gray, 301; Pickett v. Logan, 14 Ves. 232; 5 Allen, 377; 5 Cowen, 559; 6 Mass. 277; 17 Serg. & R. 319.
    
      If there is any proposition of law so thoroughly established as to be beyond doubt, it is that a judgment or decree of dismissal, upon the merits, is a final determination, and constitutes a bar to any further litigation of the same subject-matter between the same parties. And that a general entry of “ bill dismissed,” with no words of qualification such as “ dismissed without prejudice,” or, “ without prejudice to an action at law,” or the like, is conclusively presumed to be upon the merits, and is a final determination of the controversy. Foot v. Gibbs, 1 Gray, 412; Durant v. Essex Company, 7 Wall. 107; Borrowscale v. Tuttle, 5 Allen, 377; Bigelow v. Windsor, 1 Gray, 301; Thurston v. Thurston, 99 Mass. 39; Perrin v. Dunn, 4 Johns. Ch. 140 ; Kelsey v. Murphy, 26 Penn. St. 78; Wilcox v. Badger, 6 Ohio, 406; White v. Bank of United States, 6 Ohio, 529.
    Counsel for plaintiff in error has cited a number of cases, which lie insists are direct authority, that the simple dismissal in any case does not bar the further remedy to recover damages. But he seems to have not observed that all of these decisions, save one, were rendered under an entirely different system of practice from the one now in force. "When those decisions were rendered, courts of equity were distinct from courts of law; and courts of equity had no jurisdiction in a case at law, nor could they consider or pass upon a legal defense, or a counter-claim, not strictly equitable in its character.
    As the law then was, when a case for specific 'performance, or for a rescission of a contract, was before a court of equity, and the equitable relief demanded was refused, the court could ■not go forward and determine the legal rights of the parties, for the reason that the court possessed no jurisdiction over the matter. Biggerstaff v. Loveland, 8 Ohio, 44; Hatch v. Cobb, 4 Johns. Ch. 559 ; Kempshall v. Stone, 5 Johns. Ch. 193; 13 Ohio St. 288; 6 Ohio St. 216.
   White, J.

The principle upon which the decision of this case turns was determined in Creamer v. Moore, decided at the present term, ante, 347.

The question is not what the court might have decided in tlie former action between tbe parties ; but what tbe court did, in fact, .decide, as shown by the record. The court found that the plaintiff in that case, "Wagner, was not entitled to an order for the specific performance of the contract, and that the defendant, Porter, was not entitled to an order for its rescission; and, as a consequence of these findings, it was adjudged that the petition and the counter-claim each be dismissed.

This left the legal rights of the parties under the contract, as distinguished from their equitable rights, unaffected by the judgment.

The system of pleading under the code does not affect the question. Since the adoption of the code as well as before, the question in each case is, what was adjudicated in the former suit. In answering this question, reference must be had, of course, to the pleadings as well as to the judgment or decree.

If the court had decreed specific performance, the money paid by the purchaser would have been credited to him in taking the account with the vendor; or, on the other hand, if the contract had been canceled, he would have been compensated for the money he had paid in performance of the contract. The court, however, did neither, but refused to interfere, and left both parties to their strict legal rights.

The refusal of the court to rescind the contract is not inconsistent with the alleged promise of the vendor to refund the money paid, in consideration of his release from the contract.

That may have been the ground upon which the court refused to declare a rescission; but, whether so or not, such refusal does not negative the existence of such agreement to refund.

A judgment is conclusive by way of estoppel only as to facts, without the proof or admission of which it could not have been rendered. Burlen v. Shannon, 99 Mass. 200 ; Lea v. Lea, Id. 493.

Judgment of the district cou/rt and that of the common fleas reversed, and cause remanded to the court last named for a new trial.  