In this action E.H. Scrivner, plaintiff in error, was plaintiff, and the defendant in error, J.H. McClelland, was defendant in the trial court, and the parties will be so designated here.
The appeal is from an order sustaining a demurrer to the plaintiff's petition. The material matters alleged in said petition, briefly stated, are as follows: In the latter part of the year 1914 plaintiff and defendant were jointly interested in some crops and live stock. Differences arose between them, which resulted in submitting their controversy to arbitrators under an agreement that said arbitrators were to value their jointly owned property, and that Mr. Scrivner was to pay Mr. McClelland appraised value for his interest in said property, whereupon the former was to become the owner of all of said property theretofore jointly owned. Mr. Scrivner instituted certain litigation in the district court of Garvin county, seeking to set aside the award of the arbitrators, in which action Mr. McClelland pleaded the award and asked to have the same entered as the judgment of the court. This was done, and from the judgment so rendered an appeal was taken to the Supreme Court, where it was affirmed. Scrivner v. McClelland, 67 Oklahoma, 168 P. 415. It was further alleged in the petition that prior to the award plaintiff and defendant had an equal interest in the crops, and that the arbitrators so found, but that pending the litigation over the award Mr. McClelland remained in posession of all of said crops, of the approximate value of $1,338, and that during said time he converted the same to his own use and benefit; that under the award and judgment of the court the same became the property of the plaintiff; that defendant became liable to the plaintiff for the conversion of said crops in the sum of $1,338; and that said sum was in excess of defendant's judgment against the plaintiff. It was also alleged in plaintiff's petition that said judgment represents the purchase price of the property converted by the defendant; that the defendant is insolvent; and that, if the plaintiff is required to pay the judgment, he will lose the amount of his claim against the defendant. Plaintiff prayed for a restraining order, and averred that, unless restrained, the defendant would cause execution to be issued and levied upon plaintiff's property. Plaintiff then tendered into court *Page 240 the money due under the judgment in favor of the defendant, and asked that the court adjudicate the value of the crops alleged to have been converted by the defendant, and that the sum due to the plaintiff by the defendant by said conversion be offset against said judgment, and that pending the final determination of the case the defendant be enjoined from enforcing his judgment. The district court denied the temporary injunction, but after the appeal was filed this court granted this temporary relief. The questions raised and decided on the former appeal will fully appear from the opinion in Scrivner v. McClelland, supra.
In determining the correctness of the ruling of the trial court, we must bear in mind that the demurrer admits every material fact properly stated in the plaintiff's petition. C. E. Sharp Lumber Co. v. Kansas Ice Co. et al., 42 Okla. 689,142 P. 1016.
Courts of equity have the power to allow set-offs of mutual demands where such relief is necessary to enable the party claiming it to collect his claim. Patchell v. Harper et al.,40 Okla. 530, 139 P. 985, and cases there cited. And, where other equitable grounds exist, the insolvency of the party against whom the relief is sought will authorize the invoking of such equitable remedy. Patchell v. Harper, 40 Okla. 530,139 P. 985; Caldwell v. Stevens, 64 Oklahoma, 167 P. 610, L. R. A. 1918B, 421; Machado v. Borges et al., 170 Cal. 501,150 P. 351.
But in support of the judgment of the trial court the defendant contends that the demurrer was properly sustained, and says that the judgment in Scrivner v. McClelland, supra, is res judicata in this action, and also that the plaintiff's claim is barred by the statute of limitations.
The first contention is not well taken. A regular judgment of a court of competent jurisdiction, while it remains in force, is conclusive not only as to matters which were litigated, but as to every ground of recovery or defense that might have been presented and determined therein. Ely Walker Dry Goods Co. v. Smith et al., 69 Oklahoma, 160 P. 898; Bank of Chelsea v. School Dist. No. 1, Rogers County, et al., 62 Oklahoma,162 P. 809; Deming Investment Co. v. Shannon et al., 62 Oklahoma,162 P. 471.
Still such a judgment is conclusive on the parties to a pending suit only upon such questions and rights that were litigated and determined, or which might properly have been adjudicated in such former action. Parks et al. v. Haynes et al., 52 Okla. 63, 152 P. 400; Baker v. Leavitt et al.,54 Okla. 70, 153 P. 1099; Norton v. Kelley, 57 Okla. 222,156 P. 1164.
It is insisted that the plaintiff should have litigated in the former actions or have pleaded as a set-off his claim for the conversion by the defendant of plaintiff's share of the jointly owned property, and in order to clearly understand the issues in that action the defendant has invited us to examine the record in that case. This we have done, and we find that, while the action was one consolidated with a replevin action instituted by plaintiff against defendant for recovery of the property, after McClelland brought his action setting up and asking judgment on the award of the arbitrators the only question litigated and considered at issue either by the court or the parties to the action was whether the award was entitled to be entered as the judgment of the court. In that action Mr. Scrivner assailed the award, and did not claim title under the award to all the jointly owned property. It does not appear that it would have been proper in said action for him to have counterclaimed for the conversion of said property. He would have taken a most inconsistent position after having assailed the award as fraudulent to have claimed title to all the property under it. But it is insisted by defendant that the judgment in the first action was not that Scrivner should take all the property and pay McClelland the value of his part as fixed by the arbitrators, as alleged in plaintiff's petition, but was merely a money judgment in McClelland's favor against Scrivner. The judgment is silent as to the ownership of the property, but the plaintiff's petition in this case alleges that Scrivner was to take the property upon the payment of the award, and this was undoubtedly the effect of the judgment in the former action under the issues made therein. The law regards substance rather than form.
The action was not barred by the statute of limitations. Section 4746, Rev. Laws of 1910, so far as pertinent, provides that "such set-off or counterclaim shall not be barred by the statute of limitation until the claim of plaintiff is so barred." See, also, Stauffer et al. v. Campbell, 30 Okla. 76,118 P. 391.
The defendant is seeking, according to plaintiff's petition, to have execution issued against the plaintiff to collect the purchase price of the property, the title to which vested in Mr. Scrivner upon the rendition of the judgment enforcing the award of the arbitrators, and unless the court interferes by taking jurisdiction of the present action, it appears, if the allegations of the petition are true, that Mr. Scrivner will be compelled to pay the purchase price of a portion of the property that had been converted by the very party who is seeking to collect its value. To permit this would violate the plainest principles *Page 241 of right and justice. We think the petition stated a cause of action.
The cause is therefore reversed and remanded, with directions to overrule the demurrer.
All the Justices concur, except SHARP, J., dissenting in part.
On Rehearing.