| Mich. | Jan 25, 1898
(after stating the facts). The question which meets us at the threshold of this case is whether the subject-matter is res jtodicata. In the former case it was determined that Clark, Baker & Co. had failed to use due diligence in the' collection of the accounts, within the meaning of the guaranty. The subject-matter of that suit was the alleged right to recover of Kellogg by reason of a breach of his contract of guaranty. The subject-matter of defendant’s claim in the present proceeding is the same alleged breach. But that issue was tried in the former suit, and determined in favor of the present claimant. As was said in Bond v. Markstrum, 102 Mich. 11" court="Mich." date_filed="1894-09-25" href="https://app.midpage.ai/document/bond-v-markstrum-7937247?utm_source=webapp" opinion_id="7937247">102 Mich. 11:
*621 “A former adjudication of the right of action, where the court had jurisdiction of the subject-matter and of the parties, is unquestionably a bar to an action for the same debt or claim, and is conclusive where the same subject-matter is sought to be again litigated, no matter how, between the same parties. In such case it is no answer to say there were questions which were not raised or litigated. It is enough if they might have been raised and litigated.”
It is contended by the defendant, however, that the former judgment does not constitute a bar to subsequent proceedings for the same cause of action, unless rendered on the merits of the case; and that as the pleadings in the former case did not admit of a showing that the diligence required by the contract on the part of Clark, Baker & Co. had been waived by Kellogg, and as the testimony in this case tends to show that fact, the former adjudication was not an adjudication of the merits. It is undoubtedly true that the determination of a case by a court without reaching the merits is not a bar to another action, but this is not that case. Plaintiffs saw fit to declare, alleging performance of the contract on their part, to wit, the exercise of due diligence. They could have made their case under the declaration by showing that they used the diligence required by the terms of the contract. They elected to proceed to trial and judgment on the issue. It is true, the pleadings were not so framed as to admit of proof that Kellogg had waived his right to insist that due diligence required that legal proceedings be instituted against the debtors, but nevertheless the subject-matter of the suit was the breach of the contract of guaranty, which depended upon the alleged inability to collect the accounts. Is it any the less a second vexing of the party for the same 'cause of action because the plaintiffs undertook in that case a greater burden of proof than they were able to maintain ? We think not. This case does not fall within that class of cases in which it has been held that a former suit, in which the cause of action was not admissible under the pleadings, is not a bar. A recovery on the issue as made in Clark v. Kellogg, on evidence supporting the
It follows from these views that the judgment should be affirmed.