1. The instructions of the court upon the burden of proof and the evidence of consideration were correct. Delano v. Bartlett, 6 Cush. 364. The degree of credit to be given to the note is not matter of law, except so far that it is sufficient of itself, in the absence of any other evidence, to sustain the action ; but its degree of credit, as compared with other evidence that may conflict with it, is for the jury. The judge correctly ruled that showing that the defendant had not himself received the consideration would not affect this rule; and rightly refused to instruct the jury that the plaintiffs must prove “ some certain and particular consideration.”
2. The plaintiffs did not seek to recover except upon proof of money received from them by the defendant or Heald upon the note, nor did any of the instructions of the judge authorize the jury to find a verdict for the plaintiffs without proof of such a :onsideration. The second of the defendant’s prayers for instructions was rightly overruled; because an advance ol money to a person to whom the defendant had given the note *395with power to use it would be a sufficient consideration, and would come under the head of prejudice to the plaintiffs, though nothing had been received by the defendant. The only intelligent consent required of the plaintiff corporation was the consent of their agent Heald. The adoption of a note obtained by an agent within his authority does not include the adoption of a fraudulent agreement or understanding between the agent and the other party beyond the line of the agent’s authority.
3. The fourth and fifth instructions given were, in substance and effect, that if no money was received by the defendant on the note, yet if it was given by him to Heald to aid him in illegally getting money from the bank and concealing the condition of the bank, or with reasonable cause to know that such was Heald’s purpose, and Heald obtained the money accordingly, the defence could not be maintained. This instruction required the plaintiffs to prove that money was actually obtained from them upon the note. That was of itself a sufficient consideration, which entitled the plaintiffs to recover. The further statements of the judge, that the defendant would be estopped to allege his own baseness or fraud, were entirely immaterial.
Exceptions overruled.
The second action was brought to recover the interest from April 1st 1855 to October 1st 1855 on the whole note, and the first instalment of four thousand dollars; and the third action was brought to recover the last instalment of ten thousand dollars, with interest thereon from October 1st 1855. The defendant, in his answer to each action, alleged that the note was made without consideration, at the plaintiffs’ request, and for their accommodation. The plaintiffs filed replications, denying these allegations, and alleging that these questions had once been finally adj udicated between the same parties in the first action.
The second and third actions were tried together in this court at March term 1858 before Bigelow, J., who reserved them for the judgment of the whole court upon the following report:
“ The defendant admitted the signature ; and the plaintiffs put in evidence the note in suit, and then offered the records of the *396court below in the former action, the defendant’s bill of exceptions and the record of the decision of this court thereon, overruling said exceptions and entering judgment on the verdict for the plaintiffs.Ramey, for the plaintiffs. Choate & Dana, for the defendant.
The judgment in the former action is neither conclusive nor admissible against the defendant in these, founded upon distinct and different promises, which may have been made upon distinct considerations, and which present different issues. The proof, which might be sufficient to charge the maker of a note for an instalment of interest falling due before the principal sum, might be wholly insufficient and irrelevant to charge him for the principal. A note might well be made merely for the purpose of securing for a stipulated time a series of payments corresponding to its maturing instalments of interest, and wholly without consideration as to its principal. Nothing can be pleaded by way of estoppel, or relied on as conclusive evidence, unless it has been put directly in issue and found by a former verdict. The rule cannot be extended to collateral facts, or to facts to be deduced by inference from the former finding of the jury. Gilbert v. Thompson, 9 *397Cush. 348. Dutton v. Woodman, 9 Cush. 261. Bigelow v Winsor, 1 Gray, 299. Eastman v. Cooper, 15 Pick. 276. Richardson v. Boston, 19 How. 268.
*396“ The plaintiffs contended that by this evidence it appeared that the subject matter of judicial controversy, on the pleadings in these two actions, was directly put in issue on the pleadings in the former action, submitted'in evidence, and distinctly found by the jury; that the points now raised were directly included within the issues, and were essential to the verdict, and that judgment was therefore conclusive against the defendant, and precluded him from setting up again in these actions that the note was without consideration and made for the plaintiffs’ accommodation.
“ The defendant objected, and contended that said records were not admissible, and that said judgment was not conclusive, and did not preclude him from the same defence again; on the ground that the other suit was for interest only, and not for the same cause of action.”
These cases were argued and decided at March term 1859.
*397Bigelow, J.The doctrine of res judicata as a bar to a subsequent action between the same parties, with its proper limitations and modifications at common law, as well as under the system of pleading now in force in this commonwealth, has been very clearly and fully stated in the recent case of Sawyer v. Woodbury, 7 Gray, 499. According to the principle there laid down, there can be no doubt that the former judgment rendered in the action between the same parties who are now litigating the present suits, and which is fully set forth in the plaintiffs’ replications, is conclusive against the defendant on the several grounds of defence alleged in his answers.
The declaration in the former action set forth the same note as that now declared on, and alleged that there was due thereon the interest from October 1st 1854 to April 1st 1855. To that claim for interest the defendant pleaded that the note was made for the accommodation of the payees, and at their request. Upon the issue thus raised, it appears by the evidence now adduced by the plaintiffs, that testimony was offered at a former trial, and a verdict for the amount of the interest then due was found for the plaintiffs, on which judgment has since been rendered.
On examination of the answers in the present actions, it will be found that the same grounds of defence are alleged as were set up in the former action. It is true that, strictly speaking, the plaintiffs now sue on a different cause of action from that on which the former suit was brought; that is, they now claim to recover the whole principal due on the same note, and the interest thereon which has accrued and fallen due since the former action was commenced. But the question here is, not on the identity of the cause of action, but on the identity of the grounds of defence set up in the former action, with those relied on in answer to the present suits. These are precisely the same. The facts alleged, as showing payment of the principal and interest in those actions, are identical with those which were averred and *398attempted to be shown in defence to the claim for interest in the first action. The fact that the note was given as an accommodation note, for the use of the payee, and without any consideration, was distinctly put in issue in the former suit, and evidence in support and disproof of this fact was offered by both parties at the trial of that action. These averments of facts were precisely stated on one side and traversed on the other, and they were directly, not inferentially, found by the jury by the former verdict. They must therefore be taken as fixed facts between the parties for all purposes.
Judgment for the plaintiffs.