SESSIONS V. JOHNSON

593

plaintiff can not, in any proper view of the facts, recover more than the difference between the amount paid by the other mortgagee and the value of the property distributed. What the plaintiffs claim is the amount the defendant received from the insolvent debtors as part of the proceeds of the sale of the equities of redemption. Abundant proof is exhibited that he received $2,444.40, and it is conceded that the whole of that amount remains in the hands of the defendant.

Two sums, amounting in the whole to $6,000, were received by the plaintiffs of the second mortgagee before the present suit was instituted. Four thousand dollars of the amount was recovered by the judgment in favor of the plaintiffs. They also instituted a second suit against the same party, to recover the amount received by him in payment of the notes upon which he was liable as indorser, which action was compromised by the payment to the assignees of $2,000, as appears by the agreed statement of facts. Such payment being made, the assignees executed a release to the defendant in that suit of all claims and demands which they, as such assignees, has against him on that account.

Judgments bind parties and privies, but they do not bind strangers; and it is clear that the present defendant was neither a party nor a privy to the action in the first suit, nor had he anything to do with the compromise of the second suit between those parties.

Enough appears in the evidence to establish that theory; but if any possible doubt could otherwise arise in respect to the conclusion, the matter is set entirely at rest by the verdict of the jury. They were told by the court that if the plaintiffs had once received full satisfaction for the proceeds of the sale from the other mortgagee, "then they can recover nothing from the defendant"; and it follows from the verdict that they did not recover in the suits against the other mortgagee anything for the portion of notes taken for the sale of the equities which was distributed to the defendant in the present suit. All that he received remains in his hands; and in as much as the assignees are not estopped by the proceedings against the second mortgagee from prosecuting their claim against the defendant for the portion of the proceeds of the equities of redemption which was distributed to him by the insolvent debtors, it follows that the assignee may recover the whole amount of that portion without regard to the antecedent proceedings against the second mortgagee, which is all that need be said in response to the third assignment of

error.

Judgment affirmed.44

"A cause of action whether ex contractu or ex delicto is not merged or extinguished by the recovery and satisfaction of a judgment against a stranger not in privity with or joined in liability with the defendant. Mathews v. Lawrence, 1 Denio (N. Y.) 212, 43 Am. Dec. 665 (1845); Ellis v. State, 2 Ind. 262 (1850); Atlantic Dock Co. v. New York, 53 N. Y. 64 (1873); Bennett v. Field, 13 R. I. 139, 43 Am. Rep. 17 (1880); Hawley v. Dawson, 16 Ore. 344, 18 Pac. 592 (1888). See also, Bertrand v. Bingham, 13 Tex. 266 (1855); Grafton v. Hinkley, III Wis. 46, 86 N. W. 859 (1901). So also, where the judgment is in favor of the stranger. Scott v. Hartog, 75 Misc. 126, 132 N. Y. S. 846 (1912); McGillvray v. Employers' Liability Assur. Corp., 214 Mass. 484, 102 N. E. 77 (1913).

38-CIV. PROC.

(b) Estoppel

PHILLIPS v. WARD

COURT OF EXCHEQUER, 1863

2 H. & C. 717

Declaration. For money payable by the defendants to the plaintiff, for work, etc., done by the plaintiff as attorney and solicitor of and otherwise for the defendants, upon their retainer, and for fees due in respect thereof, and for materials, etc., provided, and for money lent, money paid, and on accounts stated.

Plea. That the plaintiff ought not to be admitted to say that any money is payable by the defendants to the plaintiff for the causes of action in the declaration mentioned; because they say that the said retainer was a joint retainer by the defendants in this action and one John Bazalgette; and that before this suit the plaintiff brought action against the said John Bazalgette in the court of common pleas for the same causes of action as in the declaration mentioned; and such proceedings were thereupon had in an action that afterward and before this suit it was considered by the judgment of the said court in the said action that the plaintiff should take nothing by his writ for or in respect of the said causes of action; and the said judgment still remains in force; and this the defendants are ready to verify. Wherefore they pray judgment if the plaintiff ought to be admitted to say that any money is payable by the defendants to the plaintiff for the causes in the action in the declaration mentioned.

Demurrer, and joinder therein.

Hayes, Serjt., in support of the demurrer. A plaintiff who has failed in an action against one of several joint contractors is not thereby estopped from suing the others. An estoppel would arise in another action between the same parties for the same cause, but it is a novel plea that, because the plaintiff has sued the wrong party, he is estopped from suing the right one. King v. Hoare, 13 Mees. & W. 494, is the converse of this case. There it was held that a judgment (without satisfaction) recovered against one of two joint debtors was a bar to an action against the other. But that decision proceeded on the ground that a judgment changes the cause of action into matter of record, and the inferior remedy is merged in the higher. It is like the case of a judgment against one of several joint tort-feasors, which, of itself, without execution, is a bar to an action against the others for the same cause. In an action of contract against A, he can not plead in abatement the pendency of another action for the same cause against B, Henry v. Goldney, 15 Mees. & W. 494; but the proper course is to plead the non-joinder of the contractor in abatement. This plea merely says that the judgment in the former action was that the plaintiff should take nothing by his writ; but that may have been on the ground of a

personal discharge, as by bankruptcy or insolvency, or upon some ground which would not affect the merits of this case. BRAMWell, B.: It may have been on the ground that the plaintiff had not delivered a signed bill as required by the 6 & 7 Vict. ch. 73, section 37. PIGOTT, B.: Or on the ground of infancy. CHANNELL, B., referred to Buckland v. Johnson, 15 C. B. 145 (E. C. L. R., vol. 80).

Bompas, in support of the plea. The plea discloses good matter of estoppel, for it shows that the plaintiff's claim has been adjudicated upon in an action against a co-contractor. That is the distinction between King v. Hoare and Henry v. Goldney. In the former case judgment had been recovered, and the matter had passed in rem judicatam; but in the latter there was merely the pendency of another action for the same cause against another party. The court, having already pronounced judgment as to the validity of the plaintiff's claim, will not again adjudicate upon it in successive actions against each co-contractor."

45

POLLOCK, C. B.: We are all of opinion that the plea can not be sustained. This is an action against persons who are joint debtors with another person not now sued; and because he was fortunate enough to succeed by some plea or other in an action brought by the plaintiff against him for the same cause, the defendants seek to avail themselves of his immunity. Now, for anything which appears on the face of this plea, he may have succeeded on matter of defense, which, though good with respect to him, is not open to his co-debtors. The consequence is that the plea is bad, and the plaintiff entitled to judgment.

BRAMWELL, B.: I am also of opinion that the plea is bad. No doubt if a person jointly liable with others succeeds in an action against him alone by pleading a release or payment, that would afford a good defense to an action against the other joint debtorswhether pleaded in bar or by way of estoppel seems unimportantfor a release to one is a release to all, and payment by one is a discharge of all. Therefore, in some cases, a judgment recovered by one of several joint debtors may be pleaded in an action against the others. But this plea does not show that the former action was successfully resisted on some ground common to all the joint debtors; but only that the court gave judgment for the defendant, which may have been on some ground purely personal, as infancy, bankruptcy, or insolvency. Then it is said that the plaintiff should have replied specially showing how it was that he could maintain this action though he had failed in the other. But in my opinion that is not so. The plea ought to state a complete defense, and not call upon the plaintiff to answer matter imperfectly pleaded.

CHANNELL, B.: I am of the same opinion. The defendants plead a judgment recovered by a joint debtor in a former action for the same cause; and I think it incumbent on the defendants to show by their plea that the judgment in that action is inconsistent with their liability in this action. But, so far as this plea states, the judgment for the defendant in the former action may have pro

Part of the argument of counsel is omitted.

ceeded on a ground which, though affording a perfect defense as regards him, does not affect the liability of the present defendants.

PIGOTT, B.: I am of the same opinion. This plea is in form a plea in estoppel; but, whether it be considered in substance as a plea in estoppel or a plea in bar, I think it bad, for it is perfectly consistent with every allegation in it that, though the defendant in the other action recovered judgment against the plaintiff, the defendants in this action are still liable. It is said that the plaintiff ought to have replied specially, but I am of opinion that the defendants ought by their plea to show that the judgment in the former action proceeded on a ground which operated as a discharge of all the joint debtors.

Judgment for the plaintiff."

OLD DOMININON COPPER MIN., ETC., CO. v. BIGELOW SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1909 203 Mass. 159

Two bills in equity were filed by the plaintiff against the defendant, who was one of the two promoters who planned and affected the organization of the plaintiff company, to compel, after rescission by the plaintiff, the restitution of the consideration received by the promoters for property alleged to have been sold at a large profit without a full disclosure of material facts, or to compel an accounting for the secret profits, and for damages for breach of trust. After demurrers to the bill had been overruled, the defendant was permitted to file supplemental answers setting up, as a bar to the plaintiff's claim, a judgment of the Circuit Court of the United States for the Southern District of New York in a suit like one of the present suits in all particulars except that it was prosecuted against the executors of the will of Lewisohn, the defendant's fellow promoter, in which the defendant's demurrer to the bill had been sustained and a decree entered dismissing the bill, which had been

"Accord: Hunt v. Terrill, 7 J. J. Marsh. (Ky.) 67 (1831); McLelland v. Ridgeway, 12 Ala. 482 (1847); Ferguson v. State Bank, 11 Ark. 512 (1851); Nevill v. Hancock, 15 Ark. 511 (1855); Brown v. Johnson, 13 Grat. (Va.) 644 (1857); Cowley v. Patch, 120 Mass. 137 (1876). A judgment for one is no bar in an action against a co-contractor not within the jurisdiction at time of first suit. Larison v. Hager, 44 Fed. 49 (1890). A judgment in favor of joint defendants will not per se bar a several action, vice versa. Detroit v. Houghton, 42 Mich. 459, 4 Ñ. W. 171, 287 (1880); McLean v. Hansen, 37 Ill. App. 48 (1890); McCormack v. Barton, 19 Misc. 625, 44 N. Y. S. 393 (1897); Roby v. Rainsberger, 27 Ohio St. 674 (1875); Reynolds v. Pittsburgh C. & St. L. R. Co., 29 Ohio St. 602 (1876). So also, a judgment in favor of one joint and several promisor is no bar to an action against another unless it is shown that the first judgment was rendered upon a defense which would be an extinguishment of the cause of action. Townsend v. Riddle, 2 N. H. 448 (1822); Hill v. Morse, 61 Maine 541 (1873); Spencer v. Dearth, 43 Vt. 98 (1870). See also Mann v. Edwards, 34 Ill. App. 473 (1889).

OLD DOMINION COPPER MIN. &C. CO. V. BIGELOW

597

affirmed by the circuit court of appeals and the Supreme Court of the United States.47 It was contended that the matter was res judicata as to Bigelow. On the supplemental answers a hearing was had before a single justice, who reserved this among other questions arising thereon for the consideration of this court.48

RUGG, J.: The liability of the defendant, as has been pointed out, according to the law of this commonwealth, is one arising ex delicto. The wrong committed was a tort, in which the defendant and Lewisohn acted in concert. The finding of the single justice, supported by the evidence, is in substance that they were joint tortfeasors. The inquiry then is, whether one of several joint tortfeasors can plead a judgment in favor of his joint tort-feasor against a plaintiff claiming to have been injured by their joint act as an estoppel in suit by the same plaintiff against himself.

This can hardly be regarded as an open question in this commonwealth. In Sprague v. Oakes, 19 Pick. (Mass.) 455, which was an action for trespass quare clausum fregit, it was said, respecting such a defense, "The defendant was neither a party nor privy to that judgment, was not bound by it, nor could he take advantage of it." This case has never been overruled or questioned, and must be regarded as stating the law of this commonwealth. There are other authorities to the same point. Lansing v. Montgomery, 2 Johns. (N. Y.) 382; Marsh v. Berry, 7 Cow. (N. Y.) 344; Moore v. Tracy, 7 Wend. (N. Y.) 229; Gittleman v. Feltman, 122 App. Div. (N. Y.) 385; Atlantic Dock Co. v. Mayor and Aldermen of New York, 53 N. Y. 64; Tyng v. Clarke, 9 Hun (N. Y.) 269; Calkins v. Allerton, 3 Barb. (N. Y.) 171, 174; Goble v. Dillon, 86 Ind. 327; Thompson v. Chicago, St. Paul, etc., R. Co., 71 Minn. 89; Three States Lumber Co. v. Blanks, 118 Tenn. 627.

The reason upon which these decisions rest is that there can be no estoppel arising out of a judgment, unless the same parties have had their day in court touching the matter litigated, and unless the judgment is equally available to both parties. It requires no discussion to demonstrate that a judgment in the Lewisohn suit against the defendants would not have fixed liability upon the present defendant. Hence there can be no estoppel under our law or under the general principles of jurisprudence, because it is not mutual. Brigham v. Fayerweather, 140 Mass. 141, 415; Dallinger v. Richardson, 176 Mass. 77, 83; Worcester v. Green, 2 Pick. (Mass.) 425, 429; Biddle & Smart Co. v. Burnham, 91 Maine 578; Moore v. Albany, 98 N. Y. 396. "Estoppels to be good must be mutual." Litchfield v. Goodnow, 123 U. S. 549, 552; Nelson v. Brown, 144 N. Y. 384, 390. Bigelow could not have appeared as of right and made a defense in that suit. No judgment can be regarded as res

"Old Dominion Copper Min. &c. Co. v. Lewisohn, 210 U. S. 206, 52 L. ed. 1025 (1907).

The facts, as summarized, relate to but one of the questions considered, and only so much of the opinion of the court as refers to this question is printed. Hammond, J., dissenting on the merits, concurred on this point with the majority of the court. Knowlton, C. J., and Morton, J., dissenting on the merits expressed no opinion on this branch of the defense.