While this agreement, modifying the written contract of 1908, was a parol one, the cause was tried on the theory that it was taken out of the statute of frauds by the lease, in writing, signed by both defendant Ellis and plaintiffs Treat and Smith, and also by other writings signed by defendant, admitting the said interest of plaintiffs in said mining claims, as well as consideration paid and change of possession. Had the question been raised, or the attention of the court called to the form of the action, to wit, that it might be held to be an action to specifically enforce the agreement to incorporate, it would have been apparent at once that such contract could not be specifically enforced.
The appellate court reversed the case upon this ground: That it was an action to enforce the agreement to incorporate, and that such contract was too uncertain and indefinite and could not be so enforced, and “that the complaint calls for the performance of acts that require the participation of others, not parties to the contract or to the suit.”
Plaintiffs bring this new action to secure the same undivid.ed one-fifth interest in the same mining claims, alleging that on June 5, 1909, it was agreed orally between the plaintiffs Treat and Smith and the defendant that the defendant would convey to them the undivided one-fifth interest in said mining claims. Reference is made in this complaint to the agreement concerning the loan of money in 1907 and to1 the agreement to incorporate, dated July 9, 1908. The defendant answered, setting up, among other defenses, that of res adjudicata, and pursuant to equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi), said defense is taken up and now disposed of.
The mere recital of the facts seems to show that the issues in this case have been finally and conclusively determined in the former one. The plaintiffs seek to recover of and from defendant the same one-fifth interest in the same property sued *725for in the first action, based upon the same contractual relations. The same evidence would be introduced and the same difficulty encountered by plaintiffs in an action for specific performance. It is true that in their complaint in the present action they allege upon a contract entered into in June, 1909, but it is upon precisely this contract that judgment was rendered in this court on the first trial, in the belief that the evidence sustained such finding and judgment.
The Circuit Court of Appeals, however, say (236 Fed. 123, 149 C. C. A. 333)u
“It is not shown that Treat and Smith relied on any admission of their title by the appellant, or that they changed their position as to the property in any way, and there is no proof that the original contract was ever changed.”
Plaintiffs have filed a voluminous brief, citing many cases, where another action may be maintained, notwithstanding the former adjudication between the same parties, over the same subject-matter.
The case of Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 195, is a leading case on this question. In that case the court says (94 U. S. at page 352, 24 L. Ed. 195):
“In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the -same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.”
This seems to be the settled rule governing the defense of res judicata, and it is unnecessary to go into or discuss the long list of cases cited by plaintiffs, as the former judgment seems to be a finality as to the claim or demand in controversy.
See Dowell v. Appelgate, 152 U. S. at page 345, 14 Sup. Ct. at page 618 (38 L. Ed. 463), where the court says:
“This case, consequently, comes within the rule, that ‘a judgment estops not only as to every ground of recovery or defence actually presented in the action, hut also as to every ground which might have been presented.’ ”
*726See, also, Union Cent. Life Ins. Co. v. Drake, 214 Fed. 537, 131 C. C. A. 82; Dana v. Morgan et al. (D. C.) 219 Fed. 313.
The defense of res judicata will therefore have to be sustained.