
    PIERRE CAUHAPE, Appellant, v. PARKE, DAVIS & CO., Respondent.
    Bes ad judicata — when a party is not bound by a finding of fad in a former adion, in which the referee held that he had no jurisdiction to grant any relief.
    
    Upon the trial of this action, brought by the plaintiff upon a contract alleged to have been made with the defendant, the only evidence offered by the plaintiff was the judgment-roll in a prior suit between the same parties, wherein the referee had found that such a contract was made, but had refused to grant any relief, upon the ground that he had no jurisdiction to do so.
    
      Held, that the existence of this contract was not res adjudicata, between the parties by reason of the finding in the previous action, in such ásense as to render such former finding of fact binding upon the defendant in this suit, and that a judgment dismissing the complaint for a failure to prove the existence of the cause of action sued on should be affirmed.
    Appeal from a judgment dismissing the complaint entered on the report of a referee.
    
      Howard Y. /Stillman, for the appellant.
    
      William P. Chambers, for the respondent.
   Bartlett, J.:

The plaintiff sues upon an alleged contract with the defendant. To prove the existence of that contract, he put in evidence before the referee the judgment-roll in a prior suit between these same, parties, wherein another referee had found that such a contract was made but had refused to grant any relief by reason of the cause of action based thereon, upon the ground that he had no jurisdiction to do so. The plaintiff in the case at bar relied solely upon this finding as a former adjudication establishing his contract; but the referee has declined to give if this effect and has dismissed the complaint for a failure to prove the existence of the contract sued on. We agree with the referee that the existence of this contract was not res adjudieatam the previous action in such a sense as to render the former finding of fact binding upon the defendant in this suit.

It is true that Pierre Cauhape, the plaintiff there and here, recovered a small judgment in the prior action, but that was founded not at all upon this contract, but upon another and different agreement of earlier date. So far ■ as the contract here in question was concerned, tbe defendants were successful in tbe former suit. Upon an appeal they could not bave been beard to complain of tbe action of tbe court in respect to tbis contract, for tbe refusal to enforce it on tbe ground of want of jurisdiction was a decision in tbeir own favor. So long as tbe,referee in that case denied tbe plaintiff any relief, based on the contract, bis finding that it existed, was wholly needless and immaterial. Before that finding could successfully be invoked against tbe defendants as a prior adjudication, we think it would bave to appear that it constituted a decision, or the basis of a decision, from which tbe defendants could bave appealed.

Tbe judgment should be affirmed, with costs.

YaN BbuNT, P. J., and DaNiels, J., concur'red.

Judgment affirmed, with costs  