Upon the evidence, we think there are two reasons why the former judgment is not a bar to the present action:
1. Because the parties to the former action were not the same as the parties to this action. The record in that action is conclusive that the defendant was indebted to the plaintiffs Oleson and Storle for the sum of $75, a part of the money received on the sale of the machine. The judgment rendered in the former suit, and which has been paid by the defendant, estops him from denying that the part of the money received by him on the sale of the machine, and recovered in that action, belonged to Oleson and Storle jointly, and not to Oleson separately, and can therefore be no bar to the claim of the plaintiff that the balance of such purchase money belongs to him alone. The general rule is, that a judgment in a former action is not a bar to a subsequent one, unless the parties to both actions are the same or the representatives of the same. Freeman on Judgments, § 252; Lawrence v. Vernon, 3 Sumner, 20; Sheehy v. Mandeville, 6 Cranch, 253, 264; Benz v. Hines, 3 Kansas, 397; Hawes v. Waltham, 18 Pick., 451-454.
2. The evidence given on the trial of the former action was insufficient to entitle the plaintiffs to recover for the nondelivery of the note which, it was claimed, the defendant ought to have delivered to the plaintiffs (had the complaint claimed judgment for damages for such nondelivery). As to such part of the plaintiffs’ demand, the action was prematurely brought, and it would be no bar to a subsequent action therefor, had the parties been the same to both actions. Freeman on Judgments, §268; McFarlane v. Cushman, 21 Wis., 401; Bull v. Hopkins, 7 Johns., 22; Hurst v. Means, 2 Sneed, 546; Kane v. Fisher, 2 Watts, 246; King v. Fuller, 3 Caines’ R., 152. The *402record shows that the only demand made by the plaintiff on the defendant for the delivery of the note, was made on the 3d day of November, 1875. The suit was commenced on the 1st of November, 1875. The note not being then due, and the demand having been made after suit brought, the action for that part of the plaintiffs’ claim failed. Bannister v. Patty’s Executors, 35 Wis., 215-227.
It is evident that the first action was not brought by the plaintiff and Storle for the purpose of recovering damages for the nondelivery of the note according to agreement,, after refusal to deliver the same, but upon the erroneous idea that the justice’s court could grant equitable relief, aiid compel the delivery of the note. The justice rightfully determined that he had no such power; and that part of the complaint was dismissed, and judgment rendered for the sum then due.
There can be no doubt of the right of the plaintiff to bring two actions to recover the two demands against the defendant, the one demand being for the payment of $75 in money presently, and the other being for the delivery of a note for $75 payable in a year thereafter. In such case, the plaintiff could bring an action immediately and without demand to recover the $75 in money; and as to the note, he could demand the same, and, if the delivery was refused, bring an action to recover for the breach of the contract in refusing to deliver the note, and in that action recover the value thereof. As the plaintiff in his first action did not attempt to recover the value of the note on the ground that the defendant had refused to deliver the same, nor make any other claim on account thereof, which the court had jurisdiction to determine, the defendant, in order to make that action a bar to the present one, in any view of the case, must show affirmatively that when that action was instituted, the plaintiff had the right to recover damages for the nondelivery of the note, and therefore should have joined his claim for such damages with his claim to recover the money. The right to join such cause of action and to recover therefor, depended upon the fact whether a demand of the note had been made; and as the proof shows there had been *403no sncli demand, no right of action therefor had been perfected before such action was commenced; and consequently, if the same had been claimed in that action, no recovery could have been had therefor.
We think the case was fairly submitted to the jury by the learned circuit judge, and that there was no error in refusing to give the instructions asked by the appellant.
By the Oov/ri. — The judgment of the circuit court is affirmed.