
    Meiss v. Gill.
    
      Estoppel — Pleading—Evidence.
    When a party claims a former adjudication of matter set up in an action to be an estoppel, such judgment should be pleaded; and where the same is not pleaded when it can be, it is not evidence conclusive of an estoppel, and testimony may be given to show the truth.
    Error to the District Court of Pickaway county.
    July 9,1881, Eistel Meiss brought suit in the court of common pleas of Pickaway county against William Gill and I. Y. Cushing on a promissory note, of which the following is a copy, with the indorsements and credits thereon:
    “ $300.00. Cincinnati, January 21,1876.
    Eour years after date I promise to pay to the order of Lucy Gill, three hundred dollars, with interest at six per cent per annum.
    Yalue received (with interest at ten per cent per annum after maturity). Michael Ihle.”
    The following indorsements are found upon the note:
    “Pay to order of I. Y. Cushing.
    Lucy Gill. William Gill.”
    “Pay to the order of Eistel Meiss.
    I. Y. Cushing.”
    “Credit, April 10, 1880, balance of purchase-money of real estate sold in case of Wistel Meiss v. Michael Ihle, in Clermont common pleas, $148.49.”
    There are no other credits or payments on the note.
    In his petition Meiss averred that at the time of executing the note William Gill, I. Y. Cushing, and Lucy Gill signed the note respectively on the back thereof; that all of said names were so placed on the note at the time of its execution, for the purpose of giving further security without in any way prescribing the limits of the liability, and before the note was delivered, and that the defendants are liable on the noté as joint and several makers.
    The plaintiff further states that at the time of making and executing the note Lucy Gill, William Gill, and I. Y. Cushing placed their names on the back of the note as joint and several makers, with the words, “ pay to the order of I. Y. Cushing” and “pay to the order of Eistel Meiss;” and that the note was made payable to the plaintiff as the original payee. And that Lucy Gill, at the time of the execution of the note, was the wife of William Gill.
    Summons was served upon William Gill, but Cushing was not found.
    No demand of payment had been made and no notice of non-payment had been given, and Gill was not then liable as indorser of the note.
    In his answer Gill denied that at the time of executing the note either he or Cushing or Lucy Gill signed the note on the back thereof, and he denied that he signed the note as maker or placed his name on the back of the same before the note was delivered, and he denied that he was liable as a joint and several maker, and he denied that Meiss was the original payee of the note; and he averred that he, Gill, signed the note as indorser only.
    No reply was filed, and no claim of estoppel or'former judgment was pleaded. ’
    On the trial a jury was waived and the cause was submitted to the court, and Meiss offered in evidence the note, “ subject to exceptions and objections for incompetency and irrelevancy,” and he read the record of a suit in the court of common pleas of Clermont county, Ohio. This was a record of a suit by Meiss against Michael Ihle, Lucy Gill, "William Gill, and J. Y. Cushing, to foreclose a mortgage executed by Ihle to Cushing to secure the payment of this note and three other like notes.
    In the case presented by the record Meiss averred in the petition that Lucy Gill, William Gill, and Cushing signed the notes as makers, and that they were liable on the notes as joint makers. At the time of filing the petition this note and two other notes were not due. That petition demanded a personal judgment against .Gill and wife and Cushing for the note due, and asked for sale of mortgaged premises. No answer was filed, and a personal judgment was formally rendered against the defendants on the notes first due (another note having become due), but not on this note.
    The mortgaged premises were sold, and the proceeds paid the costs and the judgment rendered, and $148.49 on this note, April 10, 1880. Meiss also gave in evidence a deposition of himself and another.
    On the trial, against the objection of Meiss, William Gill testified in his own behalf, and stated what he claimed to be the facts as to tbe execution of the notes and the subsequent indorsement of the same, and testified that he did not sign the note as maker, but signed the same as indorser only.
    Meiss claimed the record to be conclusive evidence, and he excepted to the testimony of William Gill, “ on the ground that the same was not competent to contradict the record offered in evidence by the plaintiff.” The court-overruled the objection and admitted the testimony. The court found in favor of Gill, and rendered judgment for his costs. A motion for a new trial was overruled, and a bill of exceptions was filed. On proceedings in error the district court affirmed the judgment of the court of common pleas, and plaintiff in error now seeks a reversal of those judgments.
    
      Page, Abernethy & Folsom, for plaintiff in error.
    The proceedings in the court of common pleas of Clermont county estop William Gill from denying that he executed the note as maker. Beloit v. Morgan, 7 Wall. 619; Gardner v. Buckbee, 3 Cow. 120; Bouchaud v. Dias, 3 Denio, 238; Doty v. Brown, 4 N. Y. 71; Babcock v. Camp, 12 Ohio St. 11; Ferrer’s Case, 6 Coke, 8; French v. Campbell, 2 W. Black. 163; Duchess of Kingston’s Case, 2 Sm. Lead. Cas. 799; Birckhead v. Brown, 5 Sandf. 135; Aurora v. West, 7 Wall. 82; Mayor v. Lord, 9 Wall. 409; Gould v. Evansville, etc., R. R. Co., 91 U. S. 533; Hites v. Irvine, 13 Ohio St. 284; Covington, etc., Bridge Co. v. Sargent, 27 Ohio St. 233; Petersine v. Thomas, 28 Ohio St. 596; Grant v. Ramsey, 7 Ohio St. 163; Freem. Judgments, section 253.
    The fact that the judgment was by default can make no difference. Freem. Judgments, sections 330, 331; Newton v. Hook, 48 N. Y. 676; Greenabaum v. Elliott, 60 Mo. 25.
    A judgment by default is a judgment by confession. In this country a judgment by consent or by confession constitutes res adjudicala. Chamberlain v. Preble, 11 Allen, 370; Brown v. Sprague, 5 Denio, 545; Fletcher v. Holmes, 25 Ind. 458; Bank v. Hopkins, 2 Dana, 395; Dunn v. Pipes, 20 La. Ann. 276: Neusbaum v. Keim, 24 N. Y. 325; Sheldon v. Stryker, 34 Barb. 116; Dean v. Thatcher, 32 N. J. Law, 476.
    P. C. Smith and Milt Morris, for defendant in error.
    An estoppel must be pleaded to be available. Fanning v. Insurance Co., 37 Ohio St. 344; Howard v. Mitchell, 14 Mass. 241, 243; Kemp v. Goodal, 1 Salk. 277; Jones v. Reynolds, 7 Car. & P. 335; Picquet v. McKay, 2 Blackf. 465; Outram v. Moorewood, 3 East, 346; Vooght v. Winch, 2 Barn. & Ald. 662; Aurora v. West, 7 Wall. 82; Isaacs v. Clark, 12 Vt. 692; Eastman v. Cooper, 15 Pick. 276; 2 Sm. Lead. Cas. 668.
    To estop an indorser, under the circumstances in this case, from asserting the fact that he is an indorser, and not a maker, it must appear that in the former case the point was at issue, material, and necessarily determined in the action. Railroad Co. v. Ralston, 41 Ohio St. 587.
    A former judgment is a bar, not to all claims that might have been litigated therein, but only to such claims or matters as might have been litigated under the pleadings and issues as made. Millard v. Missouri, K. & T. R. Co., 86 N. Y. 443; Bates v. Stanton, 1 Duer, 79; Burdick v. Post, 12 Barb. 168; Carter v. James, 13 M. & W. 137; Lewis’ App., 67 Pa. St. 153; Aspden v. Nixon, 4 How. 497; Eastman v. Cooper, 15 Pick. 276.
    A default judgment is not a bar. Cromwell v. County of Sac, 94 U. S. 351; Boileau v. Rutlin, 2 Exch. 665, 681; Hughes v. Alexander, 5 Duer, 493; Hewlett v. Tarte, 10 C. B. N. S. 813; Lumber Co. v. Buchtel, 101 U. S. 638; Davis v. Brown, 94 U. S. 423; McClelland, v. Bishop, 42 Ohio St. 113.
    The estoppel must operate mutually between the parties. Both must be bound or neither is estopped. One who is not bound by, can not take advantage of an estoppel. Lewis v. Castleman, 27 Tex. 421; Bolling v. Mayor, 3 Rand. (Va.) 563; Schuman v. Garratt, 16 Cal. 100; Lansing v. Montgomery, 2 John. 382; Longwell v. Bentley, 23 Pa. St. 99; McClelland v. Bishop, supra.
    
    
      Gill liad a right to rely on the information conveyed by the indorsement that nothing was claimed beyond the amount due on the first of the series of notes. Finckh v. Evers, 25 Ohio St. 82; Hamilton v. Miller, 31 Ohio St. 87.
   Follett, J.

It does not appear that either party objected to the form or substance of the pleadings. The only exceptions noted were to the reading of the record “as incompetent and irrelevant,” and to the admission of the testimony of Gill, and the objection to such admission was “ on the ground that the same was not competent to contradict the record offered in evidence by the plaintiff.” The record was not in issue, and no former adjudication of the same matter was set up as an estoppel. Meiss claimed a personal judgment for the unpaid amount of the promissory note in suit against Gill as a joint maker of the note. Gill answered, denying that he was a joint maker of the note, and averring “that he signed said note as indorser only.” To this averment Meiss could have replied as an estoppel any former adjudication between them of that fact.

This court has decided that question, and also has held: “If the plaintiff relies on a record of a former adjudication of the same matter set up in an answer, as an estoppel, he should plead such former judgment.” Fanning v. Insurance Co., 37 Ohio St. 344. And in that case the court held: “It (the record) is not admissible in evidence under a general or special denial of the new matter contained in the answer.” The record is not admissible in evidence as conclusive of the truth of the facts put in issue, nor as an estoppel.

This court said, in Lockwood v. Wildman, 13 Ohio, 450: “A former decree to be a bar, even when well pleaded, or set up by way of answer, must be such as shows that the rights of complainants, now set up, have been already conclusively determined.” And this court held, in Grant v. Ramsey, 7 Ohio St. 157: “Where a question of fact has once been tried and adjudicated by a court of competent jurisdiction, it can not be re-opened in a subsequent suit between the same parties. They are concluded by the former judgment.” But such trial and adjudication should be pleaded, if the same can be pleaded, to conclude the parties. • When a judgment is pleaded in bar, there must be determined whether or not the fact set up has been thus adjudicated between the parties. Lockwood v. Wildman supra, and Gilbert v. Thompson, 9 Cush. 348, and Davis v. Brown, 94 U. S. 423. And when a judgment is not pleaded, and could have been pleaded, “in evidence,” such a judg4 ment is not conclusive to estop a party from proving the truth of a fact in dispute. To this extent the rule laid down in the case of the Duchess of Kingston, 20 Howell’s State Trials, 355, has been modified.

In the year 1819, the Court of King’s Bench, in Vooght v. Winch, 2 Barn. & Ald. 662, held: “A verdict obtained by the defendant in a former action, and which, if pleaded •in bar, would be an estoppel, when given in evidence under the general issue, is not conclusive against the plaintiff, but only evidence to go to the jury.”

And Abbott, C. J., said, on page 668: “I am of opinion that the verdict and judgment obtained for the defendant in the former action wás not conclusive evidence against the plaintiff upon the plea of not guilty. . . . But the defendant has pleaded not guilty, and has thereby elected to submit his case to a jury, . . . and they are to give their verdict upon the whole evidence then submitted to them: . . . for the very first thing I learnt in the study of the law was that a judgment recovered must be pleaded.” The other judges, in separate opinions, concurred. See also Jones v. Reynolds, 7 Car. & P. 335.

In Howard v. Mitchell, 14 Mass. 241, the court held: “When the matter, to which the estoppel applies, is distinctly averred or denied by one party, and the other takes issue on the fact, instead of pleading the estoppel, he waives the estoppel, and' the jury are at liberty to find the truth.” See Eastman v. Cooper, 15 Pick. 276.

In Picquet v. McKay, 2 Blackf. 465, the supreme court of Indiana held: “ To render a former recovery an estoppel to a subsequent suit, embracing the same matter in controversy with the first, the judgment must be specially pleaded as an estoppel. If it be not so pleaded, and the defendant rely on the general issue, the former judgment is admissible in evidence, but it is not a conclusive bar to the action; the jury may still find for the plaintiff, if they think him entitled to recover.”

¥e need not consider the effect of a judgment on default, nor whether that record presented an adjudication of any matter that .would have been a bar to any defense 'set up by Gill if the judgment had been well pleaded.

Each case must be determined by its special facts explained by legal principles. See Davis v. Brown, 94 U. S. 428.

On the trial of this original case the issue between Meiss and Gill on the pleadings was, whether or not Gill signed that note as a maker. On that issue he was a competent witness to testify in his own behalf.

And as the court allowed the record of the former case to be read as testimony, it was not error to permit Gill to testify as to the execution of the notes and mortgage and how he came to sign his name on the back of this note.

The court did not err to the prejudice of the plaintiff in error.

Judgment affirmed.  