* Corpus Juris-Cyc. References: Judgments, 34CJ, p. 777, n. 81; p. 845, n. 55; p. 1079, n. 90. Action for balance due on a contract. The issues were found for plaintiff under a peremptory instruction by the court. Defendant appealed.
The contract which is the basis of this suit was a sale by plaintiffs of their rights under a contract with the owners of certain lands relative to a mining lease. Defendant agreed to pay plaintiff $6000 in monthly installments of $1000 each. This suit is to recover the last four installments.
The history of the transactions between these parties as far as litigation is concerned may be briefly stated as follows: A suit was brought by plaintiffs against this defendant based on this same contract and plaintiff recovered the full $6000 which defendant had *Page 1271 agreed to pay plaintiffs. On appeal to this court the judgment was reversed without remanding by majority opinion on the ground that there was no consideration for the contract. One judge dissented and the case was certified to the Supreme Court. [See Leon v. Barnsdall Mining Company, 247 S.W. 1013.] The Supreme Court held that There was a sufficient consideration to sustain the contract and plaintiffs could recover for the first two installments, amounting to $2000, but held that as the other four installments were not due when that suit was brought plaintiffs could not recover for them in that action. [See same case,274 S.W. 699.]
We refer to these two reports for a full statement of all the facts. As we view the case now before us we do not deem it necessary to incorporate herein a full statement of the facts. We think our conclusion here must be governed by the decision of the Supreme Court in the other case. This case is a new suit to recover four installments provided in the contract which the Supreme Court held had not matured when the other suit based on this contract was filed.
Both parties now contend that the judgment of the Supreme Court in the other case is res adjudicata in this case. The appellant contends that since the Supreme Court held in the other suit that plaintiff could only recover two installments, amounting to $2000, in that suit, and reversed and remanded the case with directions to enter judgment for that amount and made no order in relation to the other four installments, that the judgment is a finality and precludes any other suit upon the same contract. We are of the opinion, however, that since the ground for holding that no recovery could be had in that suit for the amount of the last four installments provided in the contract was, that these installments were not due when the suit was filed, as stated in the opinion, the judgment in that case is not a bar to this suit. If recovery is prevented in any suit solely for the reason that the cause of action had not accrued when the suit was brought the judgment in that case is not a bar to another suit to recover the same thing after the cause of action does accrue. [Dillinger v. Kelley, 84 Mo. 561; Lawler v. Vette, 166 Mo. App. 342, 149 S.W. 43.]
Respondent contends that the judgment in the former suit isres adjudicata of every question raised by the defense in this suit and for that reason the peremptory instruction to find for plaintiff in this case was correct.
In the former suit, which was based on the same contract as in this suit, one defense was fraud in inducing the execution of the contract and a counterclaim for resultant damages was set up. Fraud is alleged as a defense in this case but no counterclaim is asserted. On the issue of fraud the finding in the former suit was against defendant and it had, therefore, had its day in court on the question of *Page 1272 fraud inducing the execution of the contract and cannot again litigate that question.
The contract sued upon contained a provision by which defendant, upon doing certain things, could rescind and surrender the contract and be released from further payments under it. In the former suit and in this suit a defense of having surrendered the contract and thereby secured a release from further liability for payments under it was pleaded. That issue was also found against defendant in the former suit. In that suit the plaintiff sought to recover all the installments, or the full sum of $6000 provided in the contract. The judgment in the trial court was for that amount. On appeal the Supreme Court held that the plaintiff was entitled to recover and also held that the action was one for the recovery of the amount due under the contract and not a suit for damages for its breach. It then held that at the same time the suit was filed there were but two installments due under the contract hence the recovery in that suit must be limited to the amount of the first two installments, or $2000, and reversed and remanded the judgment with directions to enter judgment for plaintiff for $2000 and interest thereon. What defendant had done which it contended in that suit relieved it from liability under the contract had all been done prior to the maturity of the first two installments and the Supreme Court held that defendant had not complied with the terms of the contract on that question and hence that defense must fail. The contract provided that in case defendant wished to cease operations and rescind and surrender the contract it could do so by giving thirty days' notice by letter, but should it decide to rescind the contract it must continue operations for thirty days after giving notice to rescind. It was shown in the former trial that defendant ceased operations before or about the time that it sent the letter to plaintiffs declaring its intention to rescind and surrender the contract. The Supreme Court held that having ceased operations and having failed to continue for thirty days after having given the notice of rescission was not a compliance with the contract and hence the defense of surrender was not open to defendant. That was clearly an adjudication of that question and it could not be successfully asserted as a defense in this suit.
Fraud and rescission were the only defenses pleaded in this suit and since both those questions had been adjudicated against defendant in the former suit it had no defense to this action and the peremptory instruction to find for plaintiff was properly given.
Judgment affirmed. Bailey and Bradley, JJ., concur. *Page 1273