
    Arnold, Respondent, vs. Randall, imp., Appellant.
    
      January 10
    
    January 31, 1905.
    
    Res judicata: Judgment in another action.
    
    It having been determined by tbe judgment in another action between the same parties, and upon the same evidence, that the alleged agreement upon which this action is based was not made, the matter is res judicata and that judgment is conclusive in this action.
    
    Appeal from a judgment of tbe circuit court for Douglas county: A. J. ViNjs, Circuit Judge.
    
      Reversed.
    
    This action grows out of tbe same transaction as tbat between tbe same parties passed on by this court and decided February 2, 1904. 121 Wis. 462, 98 N. W. 239. Tbe two actions were, by stipulation, tried together upon tbe same evidence. Tbe difference consists in that, while tbe former was based upon tbe right of tbe mortgagee, assigned to plaintiff, to recover bis unsatisfied debt from the defendant Randall by reason of tbe latter’s alleged agreement with Bird to pay tbe same, this is based upon tbe fact tbat Bird bad been compelled to pay $350 in discharge of himself from liability upon tbat mortgage indebtedness, notwithstanding tbe alleged contract of Randall to pay it. Bird assigned such right of action to plaintiff. Tbe court found the facts substantially as in tbe former action, including a finding and conclusion tbat
    
      
      Randall and Gray did'assume the mortgage debt, and became liable therefor to the mortgagee, and judgment was rendered in favor of the plaintiff for the $350 paid..by Bird to obtain his discharge, wdth interest and costs, from which judgment defendant Randall appeals.
    The cause was submitted for the appellant on the brief of A. G. Titus.
    
    [No appearance for the respondent.]
   Dodge, J.

The only cause of action stated in the complaint is predicated upon the existence and breach of an agreement by Randall to pay to the mortgagee the amount of his debt, and therefore must fail because, in another action between the same parties, and upon the same evidence (Arnold, v. Randall, 121 Wis. 462, 98 N. W. 239), it was finally adjudicated that no such promise was made, which is, therefore, res adjudícala and conclusive in this action. Grunert v. Spalding, 104 Wis. 193, 220, 80 N. W. 589.

By live Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the complaint.  