
    The Chanute Brick & Tile Company, Appellee, v. The Gas Belt Fuel Company, Appellant.
    
    No. 18,034.
    Appeal from Allen district court.
    Opinion filed March 8, 1913.
    Affirmed.
    
      S. C. Brown, Bruce H. Grigsby, both of Chanute, Sam R. Halstead, and Maurice H. Winger, both of Kansas City, Mo., for the appellant; Karnes, New & Krauthoff, of Kansas City, Mo., of counsel.
    
      H. P. Farrelly, and T. R. Evans, both of Chanute, for the appellee.
   Per Curiam:

The only issue litigated in the former action was whether the brick company was entitled to certain equitable relief. The question of damages for failure to furnish gas was not considered. The former judgment therefore could not be pleaded as a-defense to the present action. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825.) The evidence in the first suit would not have tended to sustain the issue here. (Hudson v. Remington, 71 Kan. 300, 80 Pac. 568.) The demurrer to the answer was rightly sustained. As to the evidence of damages, we think there was sufficient to sustain the judgment. Appellee was not required to produce evidence of orders unfilled during the days the plant lay idle for want of gas. It would have been folly to expect the company to take orders for brick which it knew could not be filled.

The judgment is affirmed.  