
    [No. 6594.
    Decided April 15, 1907.]
    William T. Parker, Appellant, v. Archie R. Galbraith et al., Respondents.
      
    
    Judgment — Res Judicata — Identity of Subject-Matter and of Parties. Where two promissory notes were given in payment for two horses, and the vendee brought suit against the payee to cancel the notes, for fraudulent representations, judgment allowing the plaintiff damages for such fraud, and applying the same upon one of the notes, which was cancelled thereby, is not a bar to an action upon the other note, brought by the assignee of the payee against the vendee and his wife; but the wife, as a member of the community receiving the benefit thereof, is bound by the former judgment, which is res judicata as to the defense of fraud.
    Appeal from a judgment of the superior court for Spokane county, Hunekc, J., entered December 23, 1905, upon the verdict of a jury rendered in favor of the defendants, after a trial on the merits before the court, in an action on' a promissory note.
    Reversed-
    
      John M. Gleason, for appellant.
    
      Peacock § Ludden, for respondents.
    
      
      Reported in 89 Pac. 712.
    
   Root, J.

This is an action by appellant to recover from respondents upon their promissory note for $500, given to one Carmode. From a judgment in favor of defendants, this appeal is prosecuted.

The facts surrounding this controversy are substantially as follows: In November, 1903, Carmode sold to defendants two stallions, and received in payment therefor two promissory notes of $500 each. Thereafter respondent Archie R. Galbraith brought an action to cancel said notes, upon the ground of misrepresentation as to one of the stallions. That action resulted in a judgment in favor of Galbraith for the recovery of $500, to the payment of which one of said promissory notes was directed to be applied and thereby cancelled. In that action it was found that the purchase price of the horse, as to which the misrepresentation referred, was $250. This amount the court doubled, under the statutory provision applicable in such cases. In the present case the same fraud and misrepresentation was pleaded as a defense. Appellant, in his reply to said defense, pleaded the former adjudication. Upon the trial of the case at bar the appellant offered the record of the other case in evidence, which offer was by the court refused. This action of the trial court is now urged as error.

Appellant maintains that the refusal to let him have the benefit of the proceedings and judgment of the former trial amounts virtually to allowing the respondents to again recover upon the same cause of action. Respondents claim that the proceedings and judgment in the former trial are not res adjudicata, for the reason that the parties are different, in that the former action was brought by Galbraith without his wife being joined, and against Carmode; while this action is prosecuted by Parker, to whom Carmode had indorsed the note, and against Galbraith and wife as a community.

Regardless of technical distinctions, we think it is evident that these respondents, by virtue of the other judgment, received the benefit of the same subj ect-mlatter which they are now urging as a defense. In that case Galbraith claimed that he was damaged by the misrepresentation, and received a judgment in the sum of $500 as satisfaction for the imposition thus practiced upon him. As it had to do with the same horse and the same transaction, it is difficult to see how the community did not receive the benefit of that adjudication. Peterson v. Hicks, 43 Wash. 412, 86 Pac. 634; Galbraith v. Carmode, 43 Wash. 456, 86 Pac. 624; Isensee v. Austin, 15 Wash. 352, 46 Pac. 394. The amount allowed in damages in that case wiped out one of the promissory notes. If upon the same subject-matter pleaded as a defense herein, they could defeat the other promissory note, we would have the position of respondents retaining both horses without having to pay anything therefor. It is not claimed that there was any misrepresentation as to the other stallion, or any reason why payment for him should not be made.

The judgment of the honorable superior court is reversed, and the cause remanded for a new trial, wherein appellant .shall be permitted to show the proceedings had in the other case. Respondents shall not be permitted to offset or counterclaim for any amount which they, or either of them, received by reason of the judgment in that case.

Hadley, C. J., Mount, Chow, and Rudkin, JJ., concur.  