1. It is contended that the matters constituting the cause of action in the present case were all tried and determined in the action of trover brought by Smith against Heilner, and that the judgment therein is a bar to this action. The rule is undisputed that, where an issue has been once litigated and determined in a court of competent jurisdiction, a judgment rendered thereon forever bars and estops the parties or their privies from again litigating the same matter: Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Hall v. Zeller, 17 Or. 381 (21 Pac. 192); Ruckman v. Union Ry. Co. 45 Or. 578 (78 Pac. 748: 69 L. R. A. 480). But, to render a judgment available as a bar to a second action against the same parties upon a different claim or demand, it is essential that the issue in the second action was a material issue in the first and necessarily determined by -the judgment therein: 1 Van Fleet, Former Adj. § 277; 1 Freeman, Judgments (4 ed.), §256.
2. The defendants’ liability to the plaintiff on the account alleged in the complaint was not tried or determined in the former action. That was an action of trover, brought by the defendants against the plaintiff to recover for the wrongful conversion of personal property. The plaintiff denied the conversion, and, as a further and separate defense, pleaded that he had contracted for the purchase of the property in controversy, and that the several items making up the account now in suit were to be deemed and considered as payments on such contract. The jury found against the plaintiff and in favor of the defendants, and so determined that there was no contract of purchase as alleged by the plaintiff, but that he was guilty of a wrongful conversion of the property and assessed his damages accordingly. Upon this verdict, judgment was rendered in favor of the defendants. The items going to make up the payments on an alleged contract which the jury found did not exist became, therefore, immaterial to any question in the cause necessary for a decision and were not adjudicated or determined by the judgment. They were not pleaded as a counterclaim or set-off to the *18action of trover, nor was any relief demanded on account thereof, and there is no presumption that the jury deducted the amount of such items from the damages so assessed against the plaintiff. These items were simply set up and referred to in the answer as a part of the terms of the alleged contract of purchase, and, when that contract was found not to exist, they ceased to be of importance in the case. The question to be decided was whether Heilner wrongfully converted the property to his own use as defendants alleged or received possession thereof under a contract of purchase as he averred, and the determination of that question in favor of the defendants ended the case.' The demurrer to the plea of estoppel was; therefore, 'properly sustained:
3. The remaining question is one of practice. It is common learning that a judgment cannot be rendered against a party without his consent while he has a pleading on file and undisposed of tendering an issue: 6 Enc. PI. & Pr. 82; Crafts v. Clark, 31 Iowa, 77. But when a party stands by and permits a court, under a mistake as to the condition of the pleadings, to render a judgment against him, he cannot avail himself of such error on appeal: Hopkins v. Donaho, 4 Tex. 336. At the time the judgment was rendered defendants’ counsel were present in court, and, so far as the record discloses, made no objection whatever to such judgment. They did not call the attention of the court at that, or any subsequent, time to the fact .that the original answer contained a general denial of the allegations of the complaint, and therefore cannot insist in this court for the ■first time that the court erred in disregarding such answer.
Affirmed.
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