1 Reported in 244 N.W. 105. Unlawful detainer from the municipal court of Minneapolis. The judgment was for defendant. Plaintiffs appeal.
The subject matter is a laundry building, which with the equipment is owned by plaintiffs. November 22, 1924, they leased the real estate to defendant for a ten-year term. Concurrently they sold the laundry equipment to him under a conditional sales contract. Even if the two contracts be considered a unit, there is no escape from the fact that two distinct subjects are involved. On the one hand there is a lease of real property, and on the other a conditional sales contract of chattels. Both lease and contract were so framed that defendant's breach of one would be equally a breach of the other.
July 7, 1931, plaintiffs, for an alleged breach by defendant, replevied the personal property. The sheriff took possession under the writ and so returned. Actually he left the property in possession of defendant, taking his receipt therefor. That action still awaits trial on the issue of fraud in the sale of the property charged to plaintiffs by defendant's answer. September 28, 1931, plaintiffs commenced a previous unlawful detainer action. They claimed default, nonpayment of rent, under the lease and also on payments under the conditional sales contract. When that case went to trial, plaintiffs, with the approval of the court and the acquiescence if not the consent of defendant, withdrew their allegations and the resulting issue under the conditional sales contract. The trial proceeded, and the case went to judgment on the one issue of default in rent. Defendant prevailed, and in this, a second unlawful detainer action, successfully interposed below a plea of res judicata. The former judgment was held an estoppel against plaintiffs. This *Page 642 second action was commenced October 27, 1931, the judgment in the first not having been entered until November 4, 1931.
1. There is a contention that the replevin action furnishes adequate support for the plea by defendant of another action pending. We cannot so hold under the special circumstances of this case. Under the conditional sales contract plaintiffs have made an effective, final election of remedies. But it is a distinct condition of the lease and a ground for forfeiture that defendant has breached, if he has, the conditional sales contract. The contract is gone, but the legal results of its breach remain. There is yet the lease upon which plaintiffs now declare and their rights under which they are entitled to enforce.
2. We cannot agree with the holding below that there is here an estoppel by judgment. Always a litigant "may avoid an estoppel by showing that a particular matter involved in the prior litigation was distinctly withdrawn, abandoned, ruled out or withheld" from consideration "so that it constituted no part of the verdict or judgment rendered thereon." Fox v. Fox,154 Minn. 169, 174, 191 N.W. 420, 421. See also Major v. Owen,126 Minn. 1, 147 N.W. 662, Ann. Cas. 1915D, 589; 34 C.J. 825, 826; Keating v. Springer, 146 Ill. 481, 34 N.E. 805,22 L.R.A. 544, 548, 37 A.S.R. 175; Anno. 38 L.R.A.(N.S.) 1024.
It may be assumed that, had the issue under the conditional sales contract not been withdrawn from the field of judicial inquiry in the former action, the resulting judgment would have been an estoppel, if not a bar, against plaintiffs in this suit. But, having been expressly withheld from consideration, we hold that the case is brought within the rule above stated, and that the former judgment is not an estoppel. To hold otherwise would ignore the distinction between cause of action and remedy, two fundamentally different things which are yet "very often confounded." 2 Wds. Phr. (1 ser.) 1015. That a breach of either lease or sales contract gave plaintiffs a cause of action is plain. Under the contract there was open the remedy of replevin. Under both lease and contract, unlawful detainer was available as the remedy but was not the *Page 643 cause of action. The latter identity of remedy did not unify the plaintiffs' causes of action — in any view, not so as to subject plaintiffs to an estoppel by judgment on the issue so distinctly excluded, as matter of unequivocal record, from those adjudicated in the former action.
The judgment must be reversed and the case remanded for a new trial.
So ordered.