June 22, 1901. The opinion of the Court was delivered by The facts out of which this controversy arose are set out in the decree of his Honor, the Circuit Judge, which is as follows: "This case is a continuation of the controversy involved in the case of Hamilton v.McAlister, reported in 49 S.C. pages 230-242. The facts of that case are fully stated there, and need not be repeated here. In that case the Court decided as follows: `The Circuit Judge has gone too far, however; he ought to have contented himself with a reformation of the contract by giving plaintiff credit on his indebtedness to defendant as of the 19th November, 1894, for the sum of $431.85, which result is reached by us in this way: The witness, Fred White, testified that he counted the trees on land taken by Mrs. C.H. Biemann to be 612; on lands claimed by both McAlister and Wickliffe, 348 trees, and on McAlister's land, undisputed, 456 trees. These aggregate 1,416 trees. By a calculation it will be seen that plaintiff agreed to pay 70.565 cents per tree. Thus making the 612 trees lost by plaintiff through title of Mrs. Biemann, worth $431.85. The plaintiff should be required to keep is contract as to the trees on McAlister's own land * * * Defendant should be required to pay nothing to plaintiff but should only be required to enter a credit, as of 19th November, 1894, on the two notes still outstanding *Page 8 for the amount of $486.85, as hereinbefore ascertained, and also the privilege to Hamilton, for and during the remainder of the year 1897, to cut and remove the timber on lands of defendant under his contract.' Now, McAlister, defendant in that case, brings his suit, as plaintiff, in this case against Hamilton, as defendant, who was plaintiff in that, alleging that Hamilton, in carrying out the contract as interpreted by the Supreme Court, cut from McAlister's land 864 trees more than he was entitled under the contract, of the size designated therein, alleged to be worth $609.80, and asking judgment against Hamilton for that amount. Hamilton answers, denying all the allegations of the complaint, which are relied on to charge him with being due the plaintiff anything, and especially pleads that the whole matter isres judicata. By consent of counsel, the whole case is submitted to me for decision on the plea of res judicata. My judgment is that this plea should be sustained. The parties are the same, and the subject matter is the same, and the Supreme Court seems to me to have disposed of the whole matter by fixing the exact amount that Hamilton should pay McAlister for his timber, and the exact time Hamilton should have in which to cut the whole of the timber of the dimensions named. It is not claimed that Hamilton has not paid the whole amount decreed to be paid by him for the timber, or that he has in any other way failed to comply with the contract as decreed by the Supreme Court. The only contention is that Hamilton actually got more trees left on the McAlister land proper than was considered in the calculation made by the Supreme Court. But it should not be forgotten that the trees were bought in bulk, for a round sum, and not by the tree, and the calculation resorted to by that Court was not to ascertain and decree what number of trees Hamilton should be allowed to cut, for he had bought them all, but to ascertain the amount of credit McAlister should give his for the trees taken by Biemann. The Supreme Court was endeavoring to modify the Circuit decree, which ordered a recision of the whole contract, so as *Page 9 to make it more favorable to plaintiff in this case, by ascertaining the amount of credit plaintiff should enter by reason of the tress lost to Hamilton on his contract. The Court did ascertain this from the undisputed testimony in that case, and decreed accordingly. There should be an end of litigation. Plaintiff had his day in Court. The matters contended for by him in this case are now res judicata. Let the complaint be dismissed with costs."
The plaintiff appealed upon several exceptions, which it is not necessary should be considered in detail, as the practical question is whether there was error in sustaining the defense of res judicata. The decree of the Circuit Judge is sustained by the reasoning, upon which it is based.
The opinion in the former case concludes as follows:
"This being my conclusion, concurred in by Mr. Justice Jones, although not concurred in by the other two Justices, the effect is that the judgment of the Circuit Court is modified in accordance with the views hereinbefore announced by me. It is accordingly so adjudged."
The matter now in dispute was considered and disposed of by the Court, and no question was left open by the former opinion. We fail to see how it can be brought again in review. Jennings v. Parr, 54 S.C. 109.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
MR. JUSTICE JONES concurs in result.