In affirmance of a salutary principle in the conduct of trials, § 1064 of the General Statutes provides that whenever evidence offered upon the trial of any civil action is objected to as inadmissible, it shall be the duty of the court, if either party shall request a decision, to then pass upon such objection and admit or reject the testimony. Upon the trial of this case the plaintiffs offered in evidence the records, pleadings and depositions in a former action in the United States Circuit Court, as evidence and conclusive evidence of facts material in the present case; the defendant objected to this evidence as inadmissible ; the trial court received and heard the evidence subject to objection; substantially at the close of the plaintiffs’ case the defendant asked that the evidence so received be excluded, and insisted that its objection to the evidence as inadmissible be then finally disposed of; the court refused to then pass upon such objection, and when the case was decided, some months after the trial, filed its ruling excluding the evidence. In this the court erred, and the error is one which entitles the defendant to a new trial, if it appear that he was injured thereby.
When inadmissible evidence is received subject to objection and afterwards excluded, a party may be injured, either by the influence such evidence may have had, even unconsciously, on the mind of the judge, or by the confusion and embarrassment which the uncertainty as to what has and has not been proved, may subject counsel in the trial of their cause. Jacques v. Bridgeport H. R. Co., 41 Conn. 61, 66. And “ in such cases the question is, does it fairly and with reasonable certainty appear upon the record that the party complaining could not have been harmed by the action of the court? Unless it does so appear a new trial will oidinarily be granted.” Peck v. Pierce, 63 Conn. 310, 319. It is impossible to examine the rulings of the trial court, from the first admission of the evidence in question to its final exclusion, without deeming it probable that the embarrassment *64caused by the errors complained of, was a material injury to the defendant in the trial of its case. A new trial therefore should be granted.
Counsel for the plaintiffs, in their ingenious and able brief, maintain that the court erred in the final exclusion of the evidence; that the judgment excluded was admissible as res judicata, and conclusive as to the main question at issue, and that therefore the defendant was not injured by the error complained of. We think the court did not err in excluding the judgment; that the res judicata established between the parties to the action tried in the Circuit Court, does not apply to the parties in this action.
The term “ res judicata” is used with different meanings in connection with different conditions, and not always with discrimination ; perhaps an exact discrimination is not always racticable in the present state of the law on this subject. jlhe two most important applications of the principle are, where it is invoked in respect to a cause of action once finally determined by a judgment; and where it is invoked in respect to the conclusiveness of a fact, con tested between the parties to an action and determined by the judgment in that action, upon the same parties when agitating their controV^versies in another suit upon a different cause of action. There is an evident distinction in these cases, not only as to the effect of a judgment, but as to the grounds on which the principle producing the effect is based. This distinction is drawn with great clearness in the opinion of Justice Field in Cromwell v. County of Sac, 94 U. S. 351, 357. In the /former case the judgment is produced as conclusive evidence that no cause of action exists; either the cause of action has been satisfied and merged in the judgment, or its nonexistence has been judicially determined and forever settled by the judgment; and the controlling principle depends primarily on the legal effect of a judgment on the cause of action determined,—the judgment is not treated merely as an estopof action alleged, but is rather held to be conclusive evidence that the cause of action alleged does not now exist, or never pel to the proof of any fact involved in the trial of the cause *65had an existence. In the latter ease the judgment is produced as evidence of some material fact in the cause of action on trial, the truth of which fact both parties are estopped from denying. In such case the controlling principle depends upon the effect of a judgment in giving indefinite life and irrebuttable probative force to any fact once judicially found to be true. It is with this latter principle alone that we are now concerned, and it must be borne in mind that the principle does not relate to the finalitj'- of a judgment in disposing of a cause of action, but to the vitality of a judgment in preserving for evidential purposes a fact once found. As stated by Baldwin, J., in 1810, the rule is “ that a fact once decided shall not be again disputed between the same parties.” Church v. Leavenworth, 4 Day, 274, 281. This principle is now settled beyond controversy. Sargent & Co. v. New Haven Steamboat Co., 65 Conn. 116, 126. But its limits in all directions are not so well settled. The very nature of the principle calls for narrow limits in its application. Within certain limits public policy that regards unnecessary litigation as an evil, that looks upon the re-agitation by parties of controversies once submitted by them to a final adjudication,, as contrary to equity and good conscience, supports the appli- . cation of the principle as wise and equitable; but the sarospublic policy might regard its application beyond those limits-; as dangerous and unjust. Among the recognized limits^ave.the following: The fact must be established by a final judgment ; it must have been in issue under the pleadings, and must also have been actually litigated and determined; it must be identical with the fact sought to be established in the second action; the identical persons between whom the fact was adjudicated in the same right or capacity, or their privies claiming under them, must be the parties to. the second action.
In the present case the defendant claims that the fact which the judgment was offered to prove,, has not been established by a final judgment, and that the faet claimed to be so established is not identical with the fact now sought to be proved. We do not discuss these claims, because w.e *66are satisfied that the identical persons between whom the facts at issue in the former action were adjudicated in the same right and capacity, are not the parties in the present action. The precise question is this: When A and B have, in their individual right and capacity, litigated a fact in issue in the trial of a cause of action arising from the breach by B of a non-negotiable contract between them, is a fact found to be true by the adjudication of that action, res judicata in a later trial of a different cause of action arising from the breach by B of a different contract between him and 0, brought by A in his capacity as an assignee of Q, subsequent to such breach? Such use of an adjudicated fact does not come within the limits to the application of this principle as generally stated. No authority has been cited holding a fact to be res judicata under such circumstances. The case of Flint v. Bodge, 10 Allen, 128, might be used as indicating some support to the plaintiffs’ claim, but the opinion of the court does not refer to the present question, and it evidently was not considered. The opinion of the Supreme Court in Collins v. Hydorn, 62 Hun, 286, 288, was reversed in the Court of Appeals, 135 N. Y. 320, and the opinion of the appellate court, which is the last statement of the law in New York upon that subject, seems expressly to state that for the purpose of the application of this principle of res judicata, the assignee of a chose in action in prosecuting the right assigned, is not acting in the same capacity as when he prosecuted a different chose in action to which he was an original party. Curtis v. Bradley, 65 Conn. 99, 115, which was also cited, has no application. In that case Curtis, Bradley, and one Plumb, were parties to a verbal agreement under which Plumb was to build a house on land Bradley had purchased from Curtis; as the work progressed Curtis was to pay Plumb for his services and for all the labor and materials that went into the construction of the house, and when the house was completed and occupied, Bradley was to pay the money expended for construction. Bradley accepted and occupied the house and refused to pay. Curtis sought to enforce the contract through a mechanic’s lien filed in the name of Plumb; failing in this, *67because the court found that Bradley’s promise of payment was not to Plumb, he brought suit under the same contract against Bradley to recover the same money; in this suit the judgment in the former suit was offered in evidence and admitted, for the purpose of showing that Bradley was estopped from claiming that his contract was made with Plumb; its admission was objected to on the ground the record was that of a suit between different parties. The admission of the judgment was sustained by this court, because it appeared from the appeal record that Curtis in his individual right was “the actual plaintiff in the former action,” under the rule recognized in Buckingham's Appeal from Probate, 60 Conn. 143. The opinion (p. 115) referred to the fact that after the commencement of the action Curtis, having taken an assignment from Plumb, had been substituted for Plumb as plaintiff, in connection with the unfounded claim that it was necessary that Curtis should have been a party to the record in the former action, as well as the party in interest who actually brought and conducted the suit. The question now before us was not involved nor considered.
The fact that the recognized general statement of the limits of the application of this rule of res judicata seems to exclude cases where the first suit is upon a cause of action arising between parties in their individual capacity, and the second suit is brought by one of the parties in his capacity as assignee of a cause of action arising between the other party and a third party, and that it has never in this State been extended to such eases—and so far as we are advised has never been extended to such cases by courts of last resort in other jurisdictions—is significant that such extension is not supported by authority. We think it cannot be supported on principle.
As stated above, the rule which gives an indefinite life, a continued and conclusive probative force to an adjudicated fact in future litigation of other and different causes of action, is based on considerations of public policy, and must be confined within the limits where those considerations are-*68operative. When confined, to the identical persons who were parties to the first action, in the same capacity in which they were parties, the considerations of public policy are clear, and the rule should be applied in the broad spirit that governs the application of a rule so founded. But when these limitations are wholly removed, the rule is no longer supported by such considerations ; on the contrary it is clearly opposed to them. It is certainly not in the interest of peace and honesty that every adjudicated fact should thereafter remain an irrebuttable witness to be employed in all future litigation by whoever may need its services. Such unlimited application of the rule would promote litigation and encourage dishonesty. So in a less degree, the considerations of public policy which support the rule witbin its proper limits, do not apply where the evidential capacity of the adjudicated fact is made the subject of trade, so that a person possessing a cause of action in the prosecution of which the fact cannot be used as a witness, may secure the benefit of its services by a trade with some other person ; and for this reason the com elusiveness of a fact adjudicated between two persons contesting in their own right, ought not to be extended to future actions in which one of the parties prosecutes a cause of action belonging to a third party, in which he is interested only by virtue of an assignment made subsequent to the judgment in the first action. ■ •
The possible and probable consequence of such an extern, sion of the rule is illustrated by the present case. A recovers judgment against B in a cause of action which has arisen between thema fact therein adjudicated may be conclusive on the merits of another cause of action which has arisen between B and Q. To induce C to put his cause of action in litigation, A offers him the benefit of the adjudicated fact which is conclusive on B as against A, but not as against 0, and promises Q one half the net proceeds of the litigation to be conducted solely at the expense of A, if 0 will assign his claim to him upon such consideration. Surely such a transaction violates public policy in various ways. It promotes litigation, it erects a technical bar against-proving the truth, *69it tends to bad faith. This rule of res judicata exists, because within its proper limits it tends to put an end to the litigation of obstinate litigants, because as between them, in equity and good conscience, the fact adjudicated ought to be conclusive ; an extension of these limits, so that the probable consequences will be the opposite, cannot be justified on the considerations of public policy that support the rule.
In stating this conclusion we do not intend to pass upon the limits of this rule’ of res judicata in other respects; the considerations of public policy on which the rule rests, may justify some apparent extension of those limits, but they do not justify an extension which makes a fact adjudicated in an action between two persons litigating a cause of action which has arisen between them in their individual capacity, res judicata in subsequent actions brought by one as assignee of a chose in action between the other and a third person, which the plaintiff has purchased of such third person after his right thereon has become fixed, and since the judgment in the first action was rendered. The statute authorizing such assignee to bring a suit in his own name alleging the assignment, his equitable ownership in good faith, and the manner of acquiring such ownership, does not alter the relations of assignor and assignee ; they remain unchanged. Beach v. Fairbanks, 52 Conn. 167; Saugatuck Br. Co. v. Westport, 39 id. 337, 349.
The principle which seeks to prevent multiplicity of actions is not—as was suggested by counsel for plaintiffs—involved in this discussion, no.r is there any ground for claiming the admissibility of this judgment as a sort of judgment in rem binding on all the world, or as evidence of reputation, or of the fixed, meaning of a term of art. The cases cited by the plaintiff do not apply to the present conditions. The judgment in the United States Circuit Court being inadmissible as res judicata, the exemplified copy of the judgment appearing in the record of the injunction case, could not be used for such purpose.
The court below also erred in admitting the record in the injunction case as conclusive evidence of the invalidity of the *70receipts in full. The finding does not clearly show that this evidence was objected to; but as the same question is distinctly raised by the ruling of the court that the judgment in the injunction case was conclusive on the question of the invalidity of the receipts, and as the question is likely to arise in the same form if a new trial is had, we think it should be decided now. In the action for injunction, the present defendant sought to enjoin A. B. Fuller and wife from bringing actions on the policies of insurance set up in the present suit; on the theory that upon the facts alleged the assignments to them of the claims under said policies were against public policy and void. The answer contained a first defense which was a general denial, and a second defense alleging that the receipts referred to in the complaint were obtained by fraud; counter-claims were also filed, each counter-claim being in effect an action on a separate policy which had been assigned to the Fullers. By order of court the case was tried on the first defense alone. The court held that upon the facts alleged the plaintiff had no right to the remedy sought, refused to render judgment for the defendants on the first defense, and to admit them to prosecute their counter-claims in that action, and dismissed the complaint for want of equity.
It is clear that nothing could have been adjudicated in this case except the facts in issue under the first defense. Counsel for the present plaintiffs claim that the complaint should be construed as alleging the validity of the receipts as a material fact; that the first defense contains a denial of; that fact, and therefore the judgment is conclusive evidence of the invalidity of the receipts. Aside from other considerations, it is an insuperable objection to this result, that the record itself shows that the claim that the complaint should, be so construed, was ruled upon by the trial court and denied, and that the validity of the receipts was not tried and was not determined, because it was not a fact in issue.
There is no other alleged error in the rulings of the court during the trial, clearly presented by the finding and likely to occur in the same form upon a re-trial, of sufficient importance to call for consideration.
*71The main claims of error in the conclusions of the court upon the facts found, relate to the construction given to the language of the book entitled “Key to the Reserve Dividend Plan,” and to the conclusion of fraud in obtaining the receipts. The first question is embarrassed by the finding that the contracts of insurance were in fact made upon an agreement in each case, that certain selected passages in said book contained the accepted definition of the “reserve dividend plan ” specified in the policy; and the other question depends almost wholly upon the language of the finding in the statement of facts. These questions have been argued elaborately and with great ability. We regret that it is not practicable to express some opinion that may be useful upon a re-trial. But inasmuch as a new trial must be granted, and we cannot assume that upon a re-trial the facts proved will be the same, or that the finding of facts which may come again before us will present the questions in the same manner, it is apparent that an expression of opinion on the questions as presented by this finding, may not be applicable to the facts established on the new trial, and may operate unfairly on the parties in preparing and trying their cause, and raising the precise issues of law that should determine their rights. We therefore refrain from indicating any opinion on these questions.
A new trial is granted.
In this opinion the other judges concurred.