
    Matthews v. Davis.
    The payee of two promissory notes, given in part execution of a single contract, brought separate actions thereon against the maker, who in each action interposed the same counter-claim for damages caused by payee’s alleged fraud in making the contract.
    In one of these actions, a demurrer to this counter-claim was sustained, and after final judgment on the note, and after error was pending in this court to reverse the judgment on the ground that the court erred in disallowing the counter-claim, the defendant prosecuted his suit for damages thereon in the other action and accepted an agreed amount as his damages arising on such counter-claim, which was credited on the note sued on in that action, and judgment was rendered for the plaintiff for the balance due on that note.
    These facts were by leave of this court, brought into the record in this case by answer, to which the plaintiff in error demurred. Held: 1. That facts of this nature occurring since the final judgment sought to be. reversed, which in law, operate as a release, waiver or bar of the errors assigned, may be pleaded in this court, as a defense to a proceeding in error. 2. That the foregoing facts are in legal effect, a withdrawal of the counter claim in this action and the plaintiff in error having received in the other action, the damages arising on the same, waives Ms right to reverse this judgment for error in disallowing the same claim for damages in this action.
    Error to the District Court of Erie county.
    Davis, the payee of a promissory note, brought an action thereon against Matthews, the maker. Matthews filed a counterclaim to recover damages arising out of the same transaction in which the note was given. A demurrer to this counter-claim was sustained on the ground, that the facts therein stated showred that it was a joint claim for damages in favor of the maker of the note and his partner. This judgment was affirmed by the district court, and Matthews filed this petition in error assigning for error the action of the courts below, in disallowing this counterclaim. Since the case has been pending here, the plaintiff in error, who had also interposed the same counter-claim in another action against him, brought by Davis, on a like note arising out of the same ti-ansaction pi-osecuted his claim for damages in that action against him, and on the trial, he was allowed a sum of money in satisfaction of his damages which was agreed upon by the parties, and applied in part payment of that note, whereby all claim for damages by reason of the facts stated in said counter-claim was fully paid.
    By leave of this court, these supplemental facts are made to appear by answer of defendant in error to which there is a demurrer.
    
      John M. Lemmon and King & Sloane, for plaintiff in error.
    
      H. c& L. IL. Goodwin, for defendant in error.
   Johnson, O. J.

These facts show, that since the pendency of the case in this court, the subject matter in controversy, the claim for damages arising on the counter-claim, has been settled, and that the plaintiff in error has received full satisfaction therefor. By such settlement, and the receipt of the amount of damages mutually agreed upon, his claim is satisfied and extinguished. This is a waiver of the right to further prosecute error on the ground that the court below refused to allow his counter-claim. Should this court proceed to final judgment and reverse the judgment below, it would prove a barren victory for plaintiff in error, as by the executed agreement, his counter-claim is extinguished. He commenced his action here, to reverse a judgment prejudicial to him, so that he might claim damages. After that he accepted a sum of money from defendant in error in satisfaction of his claim in another pending action. He could not prosecute his counter-claim in both actions. A satisfaction of it in one, was a withdrawal of it in the other. If both were pending at the same time, a judgment in one, would be a bar to it in the other. In the case now sought to be reversed it was disallowed by the court, and the case was pending here on error, when he insisted on the same claim in the other action and it was by mutual agreement allowed. This was in effect a withdrawal of it in this action and a waiver of all error in disallowing.

His right to costs arising on this counterclaim, were disposed of in that case, and as he withdrew the subject matter from judicial cognizance in this case by pleading it in that, he has no right to require of this court to review the record to determine the mere question of the costs made on error. Tabler v. Wiseman, 2 Ohio St. 201.

Nor can there be any objection to the manner in which these facts are brought up on the record in this court. They are set up by way of answer to which the plaintiff in error demurs. These facts which operate as a waiver, occurred since the judgment was rendered, and since this ease was pending here on error. They are of the same nature as facts constituting a release of error, or an estoppel. Such facts may be pleaded. Collins v. Davis, 32 Ohio St. 76.

This judgment is therefore affirmed. The plaintiff in error, by obtaining the relief sought on his counter-claim in another action must be held to have waived his right to reverse the judgment on the ground that it was disallowed in this.

Judgment affirmed.  