Being unable to concur in the opinion of Mr. Justice Gary, I state briefly my views.
The Code of Civil Procedure of 1902, section 170, provides: "The answer of the defendant must contain: 1. A general or special denial * * * 2. A statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition.
Section 171 provides: "The counter-claim mentioned in the last section must be one existing in favor of the defendant, against a plaintiff, between whom a several judgment might be had in the action, and arising out of the following causes of action: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. (2) In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.
"The defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as heretofore have been denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished."
For a proper understanding of the spirit which prompted these sections, it will be necessary to refer briefly to the state of procedure as it existed at the time of the adoption of the Code. It will be remembered that prior thereto. *Page 506 tribunals for the trial of questions of law were separate and distinct from those which had to deal with equity issues. Likewise there were numerous forms in accordance with which it was necessary to bring the various classes of cases then existing. Consequently all procedure was fraught with much technicality. Choice of a wrong form or failure to distinguish between legal and equitable issues often proved fatal to causes of action. With the progress of the science, however, it was impossible that such a state of affairs could continue. Formality had to give place to materiality. The relief sought was embodied in the Code, which provided for the abolition of all distinction between suits in equity and actions at law, and the abolition of all common law forms, and the establishment of one form to be known as the civil action. It was intended that the new procedure should be highly remedial. Instead of having to split actions and bring law issues in law courts, and equity issues in equity courts, or law defenses in law courts and equity defenses in equity courts, there was to be but one action, in which all joined in interest must be made parties, and every question connected with the case was to be adjudicated. Litigation would be thus convenienced and multiplicity of suits prevented.
Proceeding to carry out this design, the framers of this legislation were met with cases in which, although it might be an advantage to litigants to pursue a certain course, yet there was no special advantage to be gained as a matter of public policy. Others occurred in which justice and public policy demanded certain methods of procedure. In providing for the former, permissive words were used, while in the latter cases, the language is mandatory. Attention is called to this for the purpose of emphasizing the word must in the act now under consideration. The legislature having used the term, this Court must take for granted that it was used advisedly and for the purpose of remedying some existing evil. It has no authority to hold that the term was used inadvertently. The act also provides *Page 507 that the defendant may set up as many defenses or counter-claims as he has, however inconsistent they are with each other. This is to give him the benefit of all his claims. Construing this clause with the whole act, the strong implication is, if he fail to set up any one of his defenses or counter-claims, he is, after judgment, precluded from again asserting what might have been his right. This is the only construction consistent with the mandatory injunction as to what the answer shall contain. Of course, it does not apply to defenses or claims not included in the statute. The law gives the defendant an opportunity, but does not attempt to compel him to take advantage of it; that is, it does not attempt to say that he shall set up all of his claims and defenses. Under our statute one action makes a finality. Pomeroy in his work on Remedies, section 804, says in the absence of statutory provision it is not necessary to plead counter-claims in defense. Impliedly, however, where statute does require it, all claims and defenses must be set up.
Is the statute above quoted applicable to the case now under consideration? Section 171 provides, among other things, that counter-claims mentioned in the preceding section must exist in favor of the defendant against the plaintiff, and must arise out of the same transaction or be connected with the subject matter of the suit. This language, while to some extent indefinite, is sufficiently clear to remove all doubt from this case. It seems plain that the claim on which the action here is brought arose out of the transaction as to the fertilizer. But if this be doubted, certainly no one can doubt but that it is connected with the subject matter of the former suit. The fertilizer sold was productive of the alleged damages here sought to be recovered for. Therefore, it should have been set up as a defense. There are no cases exactly in point, but McAliley v. Barber,4 S.C. 48, and Rice v. Mahaffey, 9 S.C. 282, to some extent support the position taken.
But, aside from the statutory provision, there is a strong *Page 508 ground for holding that the plaintiff here cannot now maintain this action. The general rule will not be doubted that a direct final judgment of a Court of competent jurisdiction on the same subject matter, between the parties and privies in law or estate, is conclusive and cannot be reexamined in a subsequent action in the same or any other Court. Manigault v. Deas, Bailey's Eq., 293; McDowell v. McDowell, Bail Eq., 326; Davis v. Murphy, 11 Rich. Eq., 560; Hart v. Bates, 17 S.C. 35.
The difficulty, however, arises in the application of the rule. What constitutes the same subject matter and what are the issues decided? The rule as laid down by Taylor on Evidence, vol. II, sec. 1513, that, "except in special cases, the plea of res judicata applies not only to points upon which the Court was actually required to form an opinion and pronounce judgment, but to every point which properly belonged to the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time, is supported by much authority. 24 A. E. Ency. of Law, 781 Outram v. Morewood, 3 East, 346; Gould v. Ry., 91 U.S. 533; Henderson v. Henderson, 3 Hare, 115; Stafford v. Clark, 2 Bing., 382; Miller v. Covert, 1 Wend., 487; Bagot v. Williams, 3 B. C., 241; Roberts v. Heine, 27 Ala., 678; Dunham v. Bower, 33 Am. Rep., 576; Cromwell v. Sac. County,94 U.S. 351; Dowell v. Applegate, 152 U.S. 327, and numerous other United States cases. Equally well founded is the principle that a party cannot split up his defenses. Beloit v. Morgan, 7 Wallace, 619; Henderson v. Henderson,supra; Gunter v. Ry., 200 U.S. 273.
Without passing on these questions, however, we proceed to the principle that seems conclusive of the case. Without conflict are the authorities in holding that where judgment goes against the defendant, and he afterwards sues the plaintiff on a cross claim, which he might have presented in the first suit but did not, if the facts which he must establish to authorize his recovery are inconsistent with the facts *Page 509 on which the plaintiff recovered in the first action, or in direct opposition to them, the former judgment is a bar. Black on Judgments, sec. 676; 23 Cyc., 1202; Ryan v.Association, 50 S.C. 187, 27 S.E., 618; Blair v. Bartlett, 31 Am. Rep., 455; Bigelow on Estoppel (2d ed.), p. 36;Krass v. Reichert, 41 N.E., 835; Dunham v. Bower, supra;Welling v. Association, 116 Fed., 100; Fayerweather v.Ritch, 195 U.S. 301. This rule is founded on grounds of reason and public policy. Without it the conclusiveness of judgments would become a will-o-the-wisp, a mere phantom existing in the imagination of minds. The second Court obtaining jurisdiction, if it sustains the claim of the plaintiff, would in effect reverse the decision of the former Court and make it a mere nullity in many cases. A state of facts found to exist by a jury of twelve men could be declared by twelve others not to exist. Never could a plaintiff, who recovered judgment in an action, feel assured that the defendant was not keeping back some counterclaim by which he meant to make his judgment of no effect. Courts of justice would be robbed of much of their justice dispensing power and great multiplicity of suits would result.
With this principle in view let us examine the facts of the present case. There can be no doubt that, although the former action in this case was brought upon a note, it was in fact for the recovery of the value of the fertilizer here alleged to have caused the damage. Plaintiff himself in the record admits this. What issue was decided then in that former case? Plaintiff there alleged that it had sold to the defendant fertilizer to the value of a certain sum. This defendant denied. The issue went to the jury, and they found for the plaintiff. Interpreting their verdict, they in effect say that plaintiff did sell the defendant fertilizers, that they were valuable to him to the amount claimed, and, therefore, defendant should pay plaintiff such amount. The defendant now brings this action, alleging damages arising from the deleterious quality of the fertilizers. This would have been a perfect defense to the *Page 510 action above referred to if defendant could have proved it. He could even have claimed his damage and the jury, instead of finding that the fertilizers were of value to him, could have found that they did him damage, and could have given him a judgment against the plaintiff.
This case is identical in principle with the case of Blair v. Bartlett, supra. In that case plaintiff brought an action for malpractice. Prior to this action the defendant had brought an action against him in which he recovered the full amount claimed for his services. To this action he pleaded res judicata. The Court sustained this plea, saying that the former case had established the facts of the rendition of the services, and that they were valuable to the defendant since he was compelled to pay for them. But, if of value, they could not have been useless; and if of use, they could not have been harmful.
Identical are the facts found here. The former action settled, beyond all question, that plaintiff received the fertilizers and that they were of value to him. Applying the reasoning of the Court above, if they were of value they could not have been useless, and if of use they could not have been harmful. Value and harm are antipodal terms They cannot coexist in the same material. The former action having found that the fertilizers were valuable, if the plaintiff is now allowed to recover in this action, he must necessarily impute error to the former finding of a Court of competent jurisdiction, a thing which, according to the authorities and as a matter of public policy, he will not be allowed to do.
For these reasons, I think, the judgment should be reversed.