RES JUDICATA - "is whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stat ed in a special verdict, or a special case." "And one great criterion," he adds, "of this identity is that the same evidence will main tain both actions." Plaintiff sued for too little, and then brought a new suit for his full claim; held estopped ; 96 L. T. 679; a plaintiff must plead all his grounds in the first case. If he loses on that, he cannot bring another suit and urge a different ground; Manhattan Trust Co. v. Trust Co., 107 Fed. 332, 46 C. C. A. 322 ; Northern Pac. Ry. Co. v...Slaght, 205 U. S. 132, 27 Sup. Ct. 442, 51 L. Ed. 738. This is merely the necessary rule that as to a giv en cause of action the plaintiff may not split his case, nor the defendant his defence. The case must be tried once for all. And so, where it was the same cause of action, "it is quite right that the defendant should be es topped from setting up in the same action a defence that he might have pleaded, but has chosen to let the proper time go by;" How lett v. Tarte, 10 C. B. N. S. 813.
Where the cause of action is different. Here, as held in Cromwell v. Sac, 94 U. S. 352, 24 L. Ed. 195, the judgment in the for mer action operates as an estoppel only to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. It is immaterial what might have been litigated and deter mined. The cause of action is considered a different cause of action if it was not merged in the former judgment.
A common case which illustrates what is a different cause of action is found in Enfield v. Jordan, 119 U. S. 680, 7 Sup. Ct. 358, 30 L. Ed. 523, where it was held that there was a different cause of action because the former judgment was rendered upon different cou pons than those involved in the second suit. To the same effect, Nesbitt v. Independent Dist., 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562. See CAUSE OF ACTION.
In Cromwell v. Sac, 94 U. S. 352, 24 L. Ed. 195, it \vas said: "Various considerations, other than the actual merits, may govern a party in bringing forward grounds of recov ery or defence in one action, which may not exist in another action upon a different de mand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evi dence, the expense of the litigation and his own situation at the time. A party acting
upon considerations like these ought not to be precluded from contesting in a subsequent action, other demands arising out of the same transaction." In Bond v. Markstrum, 102 Mich. 11, 60 N. W. 282, an action for a second instal ment of rent where the judgment between the parties for the first instalment was set up, it was said: "Such former judgment does not preclude defenses in the second case which might have been made in the first or which were set up in the answer to the first, they not having been, as a matter of fact, litigat ed and passed on in the first action." In Hooker v. Hubbard, 102 Mass. 245, it was said: "If pleadings present several dis tinct propositions of fact, the judgment is not conclusive upon any one of them, unless it appears from the record or aliunde that the issue upon which it was rendered was up on that proposition." It was said in Howlett v. Tarte, supra, quoted and followed in Cromwell v. Sac: "But nobody ever heard of a defendant being precluded from setting up a defence in a sec ond action because he did not avail himself of the opportunity of setting it up in the first action." In 1 H. & C. 797, Martin, B., interrupting counsel, said: "What is said in Smith's Lead. Cas. as to an award is no authority for saying that an award would be an estoppel in an action for another infringement of the same patent." And in 13 M. & W. 147, it was held: "If the plaintiff were to be deemed es topped now, when the point in issue was not raised at all in the former suit, he would be deemed estopped by the finding of a matter which he never disputed and on which the jury gave no verdict, and the court no judg ment." Where the record is such that there is or may be a material issue or matter that may not have been raised, litigated, and decided in the former action, the judgment therein does not constitute an estoppel, unless by pleading or proof the party asserting it estab lishes the fact that the issue, right, or matter in question was actually and necessarily liti gated and determined in the former action ; 2Etna Life Ins. Co. v. Board of Com'rs, 117 Fed. 82, 54 C. C. A. 468.