In 10 L. It. C. P. 154, a replication that after a former judgment and before the sec ond action, a second instalment had become due and there was default, was held good, the court saying that the default did not ex ist at the time of the first action, nor until after its determination and could not have been in controversy in such action and conse quently there could be no estoppel, "Facts not produced in the first action, whether then at hand or not, may be used in another suit on a different demand, though it be of the same nature and grow out of the same transaction ;" Big. Est. 188.
What is conaudedf In Last Chance Min ing Co. v. Tyler Mng. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859, the court said: "The essence of estoppel by judgment is that there has been a judicial determination of a fact." In New Orleans v. Bank, 167 U. S. 387, 17 Sup. Ct. 905, 42 L. Ed. 202, the court said: "If in the prior cases, the question of exemption was necessarily presented and de termined upon identically the same facts, up.
on which the right of exemption is now claimed." Parke, B., in 2 Exch. 665 (cited in Cromwell v. Sac), said: "The facts actually decided by an issue in any suit cannot be again litigated between the same parties." "Facts not produced in the first action . . . may be used in another suit on a different demand, though it be of the same nature and grew out of the same transac tion ;" Big. Est. 188.
And in Outram v. Morewood, 3 East 346, the court said: "And it is not the recovery, but the matter alleged by the Tarty upon which the recovery proceeds which creates the estoppel." (Quoted in Cromwell v. Sac.) "A judgment is conclusive by way of es toppel of facts (necessary facts in general as well as the primary facts in issue) and none other without the existence and proof or ad mission, by which it could not have been ren •iered." Big. Est. 170. "The judgment is con clusive upon all issues which have become necessary for a decision of the case whatever their relation to the cause of action ;" Big. Est. 177, citing King v. Chase, 15 N. H. 9, 41 Am. Dec. 675, as taking a contrary view, but as being inconsistent with the doctrine of the other cases which are cited. It was held in New Orleans v. Bank, 167 U. S. 376, 17 Sup. Ct. 905, 42 L. Ed. 202, that when the con struction of a contract is in controversy, the construction adjudged by the court will bind the parties in all future disputes.
Cases to which the doctrine of res judicata has been applied are: The decision of a ref eree on a point properly determined by him and reviewable on appeal; 3 East 346; Cas tle v. Noyes, 14 N. Y. 329 ; a judgment ren dered on a compromise ; Culverhouse v. Marx, 39 La. Ann. 809, 2 South. 607; an agreed judgment ; Robbins v. Hubbard (Tex.) 108 S. W. 773; Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672 ; by default ; Harshman v. Knox Co., 122 U. S. 306; 7 Sup. Ct. 1171, 30 L. Ed. 1152 ; Goebel v. Iffla, 111 N. Y. 177, 18 N. E. 649 ; Johnson v. Jones, 58 Kan. 745, 51 Pac. 224; on demurrer ; Gould v. R. Co., 91 U. S. 526, 23 L. Ed. 416; Bissell v. Spring Valley Tp., 124 U. S. 225, 8 Sup. Ct. 495, 31 L. Ed. 411; Schroers v. Fisk, 10 Colo. 599, 16 Pac. 285; or by divided court ; Kolb v. Swann, 68 Md. 516, 13 AU. 379; a judgment of dismissal entered under an agreement reciting a settlement that noth ing is due; U. S. v. Parker, 120 U. S. 89, 7 Sup. Ct. 454, 30 L. Ed. 601; or upon a hear ing where the entry is not "expressly without prejudice"; Lyon v. Mfg. Co., 125 U. S. 698, 8 Sup. Ct. 1024, 31 L. Ed. 839 ; or a simple dismissal with taxation of costs and award of execution: Rogers v. Riessner, 30 Fed. 525; State v. Superior Court, 62 Wash. 556, 114 Pac. 427; or dismissal for want of prose cution; Jones v. Turner, 81 Va. 709 (contra, Worst v. Sgitcovich [Tex.] 46 S. W. 72 ; Unit ed States Fastener Co. v. Bradley, 143 Fed. 523; the decree must be on the merits; Ex parte Loung June, 160 Fed. 254) ;\ or dismis sal for failure in the proof of execution of a contract for breach of which an action is brought, even where the words, without prej udice, are added to the decree ; Parsons v. Riley, 33 W. Va. 464, 10 S. E. 806; judg ments in other states; Sweet v. Brackley, 53 Me. 346 ; Mutual Life Ins. Co. v. Harris, 97 U. S. 331, 24 L. Ed. 959; a judgment against the plaintiff on a counterclaim ; Steves v. Frazee, 19 Ind. App. 284, 49 N. E. 385.
If the declaration have several counts and the•jury finds for the plaintiff on one of them, this is equivalent to finding against the de fendant on the other counts and the issues become res judicata; Downing v. R. Co., 70 Mo. App. 657.