TREAT et al. v. ELLIS, 253 F. 484

HUNT, Circuit Judge (after stating the facts as above). Adherence to the decision in Ellis v. Treat, supra, makes the determination of the present suit comparatively simple. In the former suit plaintiff sought to enforce a contract concerning personal property; whereas, by this suit plaintiffs seek to enforce a contract concerning real estate.

The opinion of the court in the former suit was that the allegations of the complaint failed to show that Ellis, the appellant therein, ever promised or agreed to convey to the appellees therein, Treat and Smith, any interest in the mining claims, but did agree to convey to a corporation thereafter to be formed eight mining claims, in consideration of all the stock of the corporation, and thereafter to transfer to Treat and Smith a certain per cent, of the stock. Specific performance was denied.

The remaining question considered was “whether, under the allegations of the bill and the prayer for such other and further relief as may be just and equitable, the appellees are entitled to a decree for the specific performance of the contract which they pleaded”; and -it was held that such relief should be denied for these reasons: That the contract as pleaded was too indefinite and uncertain; that the appellees, Treat and others, had never performed the covenants which were to he kept, and offered no sufficient reason for nonperformance; and that the contract, even if specific, called for participation by others not parties to the contract or suit.

The present case is as if there never had been an issue tried and adjudicated as to the rights of the parties to a conveyance of an interest in the mining property described in the contract. Now, however, the plaintiffs herein have made averments which fairly state such a cause of action, and we think that the District Court erred in ruling that the judgment in the former case operated as conclusively settling the matter. The principle which controls is the familiar one, elaborately discussed in Cromwell v. Sac County, 94 U. S. 351, 24 L.

Ed. 195, that, where the second action between the same parties is upon a different demand, the judgment in the former suit operates as an estoppel only as to those matters which were in issue, or those controverted points upon the decision of which the finding was rendered.

The Supreme Court also said: “In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.” See McNamara v. Home Land & Cattle Co., 121 Fed. 797, 58 C. C. A. 245; Miller v. Margerie, 170 Fed. 710, 96 C. C. A. 30.

The decree is reversed, and the cause is remanded, with directions to proceed in accordance with the views herein expressed. Reversed.