delivered the opinion of the court.
This suit originated before a justice of the peace, to recover the amount of a special tax bill of $240.73, issued to the plaintiff by the city engineer of St. Louis, for the construction of district sewers in Compton avenue sewer district No. 10, dated February 7, 1874. There was judgment for defendant in the Circuit Court.
At the trial an agreed statement was submitted, as follows. It was offered in evidence by plaintiff, and he rested his case upon it:
“1. The signatures and genuineness of the special tax bill, ordinance, and contract named therein are admitted, *188saving to either party all exceptions to competency and relevancy of the evidence.
“2. It is admitted that plaintiff, performed the work named in contract, in pursuance thereof, and had an assessment of the cost thereof made by the city engineer, and special tax bills issued therefor; but, as a portion of the work was outside the sewer district mentioned, the city engineer made a new and later assessment of the cost of the work, only including therein so much of the work as was done within Compton avenue sewer district No. 10; and the special tax bill sued on in this case is the one assessed and issued against the defendant under this last assessment.
“ 3. The work has been done only once, under contract No. 2,268, in said sewer district. Plaintiff only seeks in this action to recover for so much of the work under the contract as was done and situated under the sewer district aforesaid, and as constitutes defendant’s pro rata of that part of the work and chargeable to his property, if the facts in evidence in the whole case establish such charge. This stipulation shall not preclude either party from offering any other and further evidence which may be competent or relevant at the trial.”
The bill is dated February 7, 1874, is for $240.73, and is based on ordinance 7,550, and contract 2,268.
The defendant offered in evidence the record of cause 24,470, of the Circuit Court, between the same parties, in the same court, upon a similar tax bill, dated November 29, 1871, for $247.24, issued on the first assessment named in the stipulation, which embraced both the cost of the work done within said Compton avenue sewer district No. 10, and also cost of work done outside that district. In this suit there was a general and final judgment for defendant on June 8, 1873.
This evidence was objected to by plaintiff as incompetent and irrelevant, but was admitted, and plaintiff excepted.
The cause was tried before the court, sitting as a jury; *189judgment was for defendant, and, a motion for a new trial having been overruled, the cause is brought here by writ of error.
The following declarations of law, asked by plaintiff, were refused by the court, and plaintiff excepted :
“ If the court, sitting as a jury, believe from the evidence that the special tax bill sued on in this suit, and offered in evidence by the plaintiff, is not the same as the special tax bill sued on in a certain cause in this court, being case No. 24,470, between the same parties hereto, and offered in evidence by the defendant, the judgment in said last mentioned case constitutes no bar to this action by the plaintiff against the defendant.”
2. “If the court, sitting as a jury, believe from the evidence that the defendant is the owner of the property described in the special tax bill sued on in this suit; that said property is within the limits of Compton avenue sewer district No. 10; that the city engineer of the city of St. Louis assessed against said property, as its proportion of the cost of constructing sewers by plaintiff within said sewer district, the sum specified in said special tax bill, and that the same has not been paid, then the jury will find for the plaintiff the sum mentioned in said special tax bill, with interest thereon from its date, at the rate of 15 per cent, per annum, together with 10 per cent, damages, even though the jury may further believe from the evidence that the said city engineer had previously made another assessment against said property for the cost of constructing said sewers outside the limits of said sewer district, upon which said assessment a special tax bill was made out against defendant’s said property, and delivered to plaintiff; that the plaintiff sued the defendant on said special tax bill, and that in said suit judgment was rendered in favor of the-defendant because of said erroneous assessment.”
The court gave the following declaration of law, at the instance of defendant, to which action plaintiff excepted:
*190‘ ‘ The court declares the law to be that the judgment in favor of the defendant, in case No. 24,470 of this court between the same parties, read in evidence, is conclusive in favor of the defendant in this suit, and entitles the defendant to a verdict in his favor.”
It does not appear that the special tax bill sued on was actually read in evidence, nor that it was formally offered; but it was a part of the record before the court, and is so referred to in the stipulations that it was manifestly regarded by counsel on either side as in evidence in the case, and was so considered by the court.
The plea of former recovery is liberally construed, and, as is said by Judge Napton, in Union Transportation Co. v. Traube, 59 Mo. 355, “If the subject-matter of the two suits is different, and the same question was not in fact litigated, and no evidence offered concerning it, the courts are disposed to allow the merits of the case to be investigated in the second suit. The form of action is immaterial, however, and, if the cause be the same, the judgment is conclusive.”
The cause of action in these two cases was not the same. It was not the doing the work that gave the plaintiff a right to recover. The cause of action was the special tax bill. The first bill sued on was void, because issued on- an erroneous assessment, embracing the cost of work done outside the limits of the sewer district. This suit is on a second bill, made upon a second, different, and, it is claimed, a correct assessment. In both cases it was necessary to prove the work was done. Of this a valid tax bill is prima facie evidence, but it was also necessary to show'that a valid tax bill was issued. The question, as to whether the work was done or not, does not appear to have been passed upon on the first trial; and there could be no estoppel unless there was a judgment on the merits of the case now at bar. ' The special tax bill now sued on constitutes at once plaintiff’# cause of action and. the prima facie evidence of all other *191facts entitling Mm to recover. As it did not exist when the former suit was instituted, it was not used as evidence in that cause ; nor was it his cause of action there.
2. It is said that the contract on which the special tax bill sued upon rests embraced work outside sewer district No. 10, and was, therefore, ultra vires and void. If the contract embraced- work outside the sewer district, it may well be that as to such work the contractor could not recover; but it by no means follows that a tax bill could not lawfully issue for the work actually done under the contract within the sewer district; or that the engineer could not, under the law, compute the whole cost of so much of the sewer as was within the district, assess it a special tax, and issue valid tax bills for it against the respective lots of ground in the district. The tax bill originally issued was erroneous in assessing for work outside the district; but, confessedly, the bill now sued on contains no charge for any work not done in accordance with la-y witMn the sewer district defined by ordinance or contract.
From what has been said it is manifest that, in our opinion, this case has been tried upon a wrong theory, and that the declaration of law given at the instance of defendant should have been refused.
The judgment of the Circuit Court is reversed and the cause remanded, to be proceeded with in accordance with this opinion.
The other judges concur.