
    Hanes v. The Dayton and South Eastern Railroad Company.
    1. If the record of a judgment, offered in evidence to support a plea in estoppel, shows no issue except one under which neither of the contracts disputed in the pending suit was confessed by the pleadings, or was admissible in evidence, said record is not proper evidence.
    C. Evidence, dehors the record, to show that in fact said contracts were admitted in evidence in the former suit would contradict the record and is inadmissible.
    Eeeoe to the District Court of Greene County.
    The Dayton and South Eastern Railroad Company sued Luther Hanes; the petition counting, first, upon a contract made in September, A. d. 1874, for four shares of stock at $200; and, second, upon a contract made in October, A. D. 1874, for ten shares of stock at $500. Hanes answered denying each of said contracts. The company replied pleading by way of estoppel a former recovery for the first two installments of said subscriptions. At the trial the company offered in evidence a record showing a recovery of two installments in an action upon a contract made in November, A. D. 1874, for fourteen shares at $700, said contract being denied by answer. The court, against Hanes’ objection, admitted said record in evidence, and also parol testimony tending to show that at the trial no evidence of a single contract for fourteen shares was offered, while evidence of the two contracts described in the petition in the second suit was received ; and that the installments recovered were in fact the first and second installments under said two contracts. Hanes excepted and his bill of exceptions was duly taken and made part of the record. The company recovered a judgment in the common pleas which the district court affirmed. Hanes asks a reversal of both judgments.
    
      T. E. Scroggy for plaintiff in error.
    The causes of action must be identical to the extent that the same evidence will support both. Stowell v. Chamberlain, 60 N. Y., 272; Freeman on Judgments, 3d ed., section 259; Railroad Co. v. Hall, 26 Ohio St., 310.
    It must appear from the record of the prior suit that the particular controversy sought to be precluded, was there necessarily tried and determined. •Lessee of Lore v. Truman, 10 Ohio St., 45; Freeman on Judgments, sections 257-8-9; 1 Greenleaf on Evidence, section 524; Jones v. Fales, 4 Mass., 255; Avery v. Vansickle, 35 Ohio St., 274; Porter v. Wagner, 36 Ohio St., 471; Campbell v. Consalus, 25 N. Y., 613; Cromwell v. County of Sac, 94 U. S., 351; jDuncan v. Bancroft, 110 Mass., 267.
    To make a record in a former suit conclusive evidence on any point, it should appear from the record that such point was in issue. And evidence aliunde is not admissible to show that a matter not in issue on the record was taken into consideration by the jury. Manny v. Harris, 2 Johns. (N. Y.), 24; Jackson v. Wood, 3 Wendell, 27; Lawrence v. Haughton, 5 Johns. (N. Y.), 129; White v. Hawn, lb., 351; Suydam v. Aldrich, 3 McLean, 383; Pearsall v. Phelps, 3 Ala., 525; Young v. Thompson, 14 111., 380; Pauli v. Oliphant, 14 Pa. St., 342 ; Robbins v. Budd, 2 Ohio, 16 ; Godfrey v. Godfrey, 30 Ohio St., 53; Railroad Go. v. Elmore, 53 N. Y., 624.
    
      Little Shearer, for defendant in error.
    One of the issues in the first case was whether Hanes had subscribed at all; and tbe same issue is made in the second suit. The record in the former action was competent to show that such fact was in issue in that case and that it had been determined and adjudicated. When it was shown that the contracts sued on in both Cases were identical and the same, both parties were forever concluded and estopped to question the judgment in the former suit, or to re-litigate the matters involved therein. Pollock v. Cohen, 32 Ohio St., 514; Bridge Co. v. Sargent, 27 Ohio St., 233; Roby v. Rainsburger, 27 Ohio St., 674; Swenson v. Gresap, 28 Ohio St., 668; Burt v. Sternburgh, 4 Cowen, 559; Gardner v. Buckbee, 3 lb.,' 120-127; Aurora v. West, 7 Wall., 82; Beloit v. Morgan, lb., 619; Bell v. MaColloch, 31 Ohio St., 397; Outram v. Moorwood, 3 East, 358; Greathead v. Broomley, 7 Term, 452; 2 Ta3dor’s Evi., sec. 1573; Henderson v. Henderson, 3 Hare Ch., 115; Bagot v. Williams, 3 B. & C., 241; Roberts v. Heine, 27 Ala., 678; Burlen v. Shannon, 99 Mass., 203; Gilbert v. Thompson, 9 Cush., 349.
    Parol proof was competent to show the contract sued on was the same in each case. Packet Co. v. Sickles, 5 Wallace, 580; Wood v. Jackson, 8 Wend., 10; Lawrence v. Hunt, 10 Wend., 80; Youmans v. Caldwell, 4 Ohio St., 71; Packet Co. v. Sickles, 24 How. (U. S.), 333-342.
    The doctrine that the causes of action must be identical to the extent that the same evidence will support both does not, in the sense argued by counsel, apply in actions based upon different installments of the same debt, they being part of the same issue. Each installment was a separate cause of action arising out of the same subject matter. A judgment upon one of them bars inquiry in a suit to recover any subsequent installment, as to all matters respecting the contract of subscription, as to its existence, validity, etc., and as to all matters other than payment, release, and the like. In short, all matters which might have been litigated therein are concluded b3r the judgment in the first suit. Beloit v. Morgan, stipra; Roby v. Rainsburger, supra. See also, 3 Cowen, 120; 3 Denio, 238; 4 Comstock, 71; Babcock v. Camp, 12 Ohio St., 11; Duchess of Kingston’s 
      
      Case, 2 Smith L. C., 656; Aurora v. West, supra, 3 Hare, 115.
   Granger, C. J.

The record of the former judgment showed a recovery of two installments of $70 each upon a subscription for fourteen shares of stock at $700 made in November, A. D. 1874. The cause of action was the contract of subscription. The calls for assessments were only acts made necessary bjr that contract, under the statute, to determine when the subscribers for stock became bound to pay. Under the issue as made by the petition and answer no evidence of one contract for four shares made at one time, and of another contract for ten shares made at another time, was admissible. If a petition counted upon a note for $1,400, clearly the plaintiff could not put in evidence two notes — one for $1,000, and the other for $400. The contract of subscription must be in writing. Proof of two written contracts of' different dates and amounts does not support a petition counting upon one written contract for a sum equal to the aggregate of the two. Hence an inspection of the record showed that the former recovery could not legally have been for the causes of action set out in the pending petition. The matters alleged to have been passed upon must have been such as might legitimately have been given in evidence under the issue joined. If the record had shown a case in which evidence to establish contracts such as the two now in controversy was admissible, but failed to fully identify them as the contracts there actually sued upon, parol evidence might have been introduced to complete the identification. The trial court admitted a record that plainly showed a cause of action incapable of legal identification with either of the two in suit, and then permitted the company to contradict that record by parol evidence.

Hence the judgments rendered in the district court and common pleas must be reversed.

Judgment accordingly.  