The defendant’s main contention in the court below was, and his sole contention here is, that this action was barred by a former recovery. The defence of a bar by a former judgment, be'ing in the nature of a confession and avoidance, is “new matter,” within the meaning of the Code, and must be specially pleaded. No such defence was set up in the answer, but the record shows that both parties tried the cause, and allowed it to be submitted to the jury, upon the theory that this was an issue in the case; and, in accordance with our repeated decisions, they must be deemed to have •consented to the trial of the issue, and are bound by the result the same as if it had been within the pleadings.
This action, commenced in April, 1889, was for damages for the breach of contract. The contract declared on was that about November 1,. 1887, the defendant agreed to purchase of plaintiff all the milk which his cows might produce for the year commencing November 1, 1887, and ending November 1, 1888, and to furnish him daily the necessary cans in which to ship the milk from his farm to St. Paul, defendant’s place of business. The breach charged was the failure and refusal of the defendant to furnish cans for a part of the milk during the months of July, August, and September, 1889, by reason of which the milk was left on plaintiff’s hands, to his damage. It appeared on the trial that in August, 1888, the plaintiff had brought a former action against defendant for damages for the breach of this same contract, the breach alleged being the failure and refusal of the defendant to furnish cans for and receive all the milk during the months of April, May, and June, 1888; that, upon the trial of that action, plaintiff recovered judgment on the merits for $180 damages, January, 1889. The answers of defendant were substantially the same in both actions, to wit, a denial of the execution of the contract, and an allegation of the dissolution of the corporation January 28, 1888, by order of court, and that since that date it had
Upon the motion for a new trial, the learned trial judge seems to have been of the impression that, upon the evidence admitted, this might have been so except for the supposed eonclusiveness of the former judgment as to certain facts. He expresses the opinion that
Order reversed.