dissenting:
In this case the defendant in error filed four pleas of set-off. The first consisted of the common counts for money had and received, interest and an account stated. The second was based on the agreement of January 24, 1893, set out in full in the statement preceding the majority opinion. The third is based on the consideration for the conveyance to plaintiff in error made March 25, 1893, by the Belleville and St. Louis- Railway Company, of certain property, etc., named in its deed, „for one dollar and “other valuable considerations,” which other valuable considerations, it was averred, included the promise of plaintiff in error to pay the defendant in error the debt due him from said company, and it was alleg-ed that at the September term, 1893, of the St. Clair county circuit court, defendant in error brought suit against said company for the amount so due him; that the company notified plaintiff in error to defend, and that he employed counsel and defended the suit, and that the defendant in error recovered judgment for $53,022.23, which judgment is still in full force and effect. It also, sets up plaintiff in error’s efforts to enjoin the prosecution of said suit, the issues presented, the full hearing by the court and the dismissal of the bill. The fourth plea was as follows:
“Fourth plea—And for further plea in this behalf, defendant says that the said plaintiff was, before and at the time of the commencement of this suit and is still, indebted to him, the defendant, in a large sum, to-wit, the sum of $65,000, upon a contract theretofore entered into by said plaintiff and the Belleville and St. Louis Railway Company for the benefit of the defendant; and defendant avers that on, to-wit, the 25th day of March, 1893, said Belleville and St. Louis Railway Company executed and delivered to said plaintiff a deed as follows, that is to say:
“ ‘The grantor, the Belleville and St. Louis Railway Company, a corporation of the State of Illinois, in consideration of one dollar to it in hand paid by Samuel H. Leathe, of the city of St. Louis, Missouri, and of other valuable considerations to it from him moving, hereby grants, bargains and sells, conveys and confirms unto the said Samuel H. Leathe all the following described lands, situated in the county of St. Clair and State of'Illinois: All that tract of land conveyed by the St. Louis, Alton and Terre Haute Railroad Company to the said grantor by deed dated December 12, 1890, and recorded herewith, reference being made to said deed for a more particular description thereof; also all the rights of way, easements, grading and superstructure thereon, acquired by or for the grantor for the purpose of building a railroad between Belleville and East St. Louis. And the grantor covenants and agrees to and with the said Leathe, that it will, upon demand, convey, by good and proper deed of conveyance, to said Leathe and his assigns, any land, easements and right of way, privileges or immunities, it may hereafter acquire.
“ ‘Dated this 25th day of March, A. D. 1893.
(Seal.) The Belleville and St. Louis Railway Co.,
By Edward L. Thomas, President.
Attest: Henry M. Needles, Secretary.
“ ‘We, the undersigned, being all the stockholders of the Belleville and St. Louis Railway Company, hereby ratify and confirm the foregoing deed.
Bart S. Adams.
Henry M. Needles,
John T. Taylor,
A. Boling,
Edward L. Thomas,
Josephine Johnson,
By Edward L. Thomas, Proxy.'
“ ‘State of Illinois, St. Clair County.
ss"
“ ‘Before me, A. P. Miller, a notary public -in and for said county, this day appeared Edward L. Thomas and Henry M. Needles, personally known to me to be the persons whose names are subscribed to the foregoing instrument, and who, being by me duly sworn, upon oath state that said Thomas signed the name of the Belleville and St. Louis Railway Company to the said instrument for the uses and purposes therein set forth, as president of said company; that he is president of said company, and executed said deed as president by order of the stockholders of said company, whose names are subscribed thereto also; that said Needles is secretary of said company, and that he attached the seal of said company to said instrument by direction of said stockholders.
‘ ‘ ‘In witness whereof I have hereunto set my hand and notarial seal this 25th day of March, A. D. 1893.
A. F. Miller, Notary Public.
Filed March 25,1893, at 2:27 o’clock P. M.'’
“And defendant avers that said deed was then and there accepted by said plaintiff; and defendant further avers that the property described in said deed was at the time of the executing and delivering of the same to plaintiff, as aforesaid, of great value, to-wit, of the value of $100,000; and defendant avers that said Belleville and St. Louis Railway Company was at the time of the making, executing and delivering of said deed and the acceptance thereof, indebted to divers persons in large sums of money, to-wit, in sums aggregating the sum of $90,000; and defendant avers that part of the indebtedness of said railway company was its indebtedness to this defendant, in the sum of, to-wit, $65,000; and defendant avers that at the time of the making,, executing, delivering and accepting of said deed to and by said plaintiff, said plaintiff had notice of said indebtedness of said railway company and he had full knowledge of the amount thereof; and defendant avers that the consideration in said deed moving from said plaintiff to said railway company, was the agreement and promise of the said plaintiff, then and there entered into and made with the said railway company, that said plaintiff, as the consideration and payment for the property thereby to him conveyed, would pay and satisfy the said indebtedness of the said railway company to said divers parties, among whom was this defendant, and that said plaintiff, in consideration thereof, agreed and promised to pay to said defendant, within a reasonable time thereafter to elapse, the said indebtedness of said railway company to this defendant, amounting to said sum of, to-wit, $65,000, which time has long since elapsed and tire plaintiff has not paid said sum nor any part thereof to the defendant, by means whereof the plaintiff has become liable to pay to said defendant said sum of money, to-wit, $65,000, which sum of money so due from the plaintiff to the defendant, aforesaid, exceeds the damages sustained by the plaintiff by reason of the non-payment by the defendant of the said several judgments in the said declaration mentioned, and out of which said sum of money the defendant is ready and willing, and hereby offers, to set off and allow to the plaintiff the full amount of the damages; and this the defendant is ready to verify, wherefore he prays judgment,” etc.
Demurrers were overruled to said pleas, whereupon the plaintiff in error filed a general replication thereto, and a special replication to the third and fourth pleas, which was, in part, as follows: “The plaintiff says that the defendant heretofore impleaded him, the plaintiff, in an action in assumpsit begun in the name of the Belleville and St. Louis Railway Company, for the use of Edward L. Thomas, in the circuit court of St. Clair county, Illinois, to' the April term, A. D. 1894, in a plea of trespass on the case on promises, to the damage of the' plaintiff of $60,000, for not performing the very same promises in said third and fourth pleas of set-off mentioned, and such proceedings were thereupon had that at the same term of said court said cause was removed to the Circuit Court of the United States for the Southern District of Illinois, and afterwards, in said court last named, which had jurisdiction of the persons and the subject matter, such proceedings were had that by the consideration of said court the issues were found for the defendant in said cause, (the plaintiff herein,) and that the said plaintiff herein recovered his costs by him in defense of said cause expended.” To the replication nul tiel record was pleaded.
The declaration in the case of the Belleville and St. Louis Railway Company for the use of Edward L. Thomas, against the plaintiff in error, tried in the United States Circuit Court, originally contained three counts. The first count was dismissed and the case tried upon the second and third counts of the declaration, which were, in substance, as follows:
“Second count—And whereas, also, the defendant, on the 25th day of March, 1893, at the county of St. Clair, aforesaid, being then and there the owner of a large tract of valuable real estate, conveyed the same, by deed of that date, duly executed and acknowledged and delivered, to Samuel H. Leathe, the defendant, for a consideration of one dollar and other valuable considerations moving from him, the said Samuel H. Leathe, defendant, to it, the said Belleville and St. Louis Railway Company, plaintiff; and plaintiff avers that the said defendant then and there accepted said deed; and plaintiff further avers that the other valuable consideration moving from said defendant to said plaintiff was the promise and agreement of said defendant then and there made in consideration of said deed and as payment of the purchase money of the property conveyed by said deed, that he, the defendant, would then and there satisfy and pay the indebtedness of the plaintiff then and there existing and due from the plaintiff to divers parties; and plaintiff further avers that it was then and there indebted to Edward L. Thomas in a large sum of money, to-wit, in the sum of $60,000, of which the defendant then and there had full notice; and plaintiff further avers that the said indebtedness of the plaintiff to Edward L. Thomas was part of the indebtedness of plaintiff then and there promised and agreed to be paid by said defendant as part of the consideration of said deed; and the plaintiff further avers that at the September term, 1893, of the circuit court in and for said county of St. Clair and State of Illinois, a court having full jurisdiction over such matters, the said Edward L. Thomas commenced an action against the said Belléville and St. Louis Railway Company to recover said amount due him; and plaintiff further avers.that it caused the said defendant to be notified of the pendency of said suit, and authorized the said defendant to "use its said name in defending said suit;' and plaintiff further avers that said defendant, in pursuance of said notice, employed counsel and filed pleas and entered into and upon the defense of said cause; and plaintiff further avers that the issue in said cause was whether the amount claimed by said Thomas was then due and payable to him, the said Edward L. Thomas; and plaintiff further avers that after trial of the said cause, upon evidence introduced by said defendant as well as by said Edward L. Thomas, the said court rendered judgment on said cause for said Thomas in the sum of $53,022.23, which said judgment is in full force and effect, and which the plaintiff is ready to show by the record thereof, here now shown in court; and plaintiff avers that such judgment has not been paid, but remains still due and unpaid and in full force and effect; and plaintiff avers that afterwards, to-wit, on the day and year aforesaid, said defendant, in consideration thereof, promised the plaintiff to pay it the said amount of said judgment, according to its legal tenor and effect, for. the use aforesaid, when thereunto afterwards recpiested.
“Third count—And whereas, also, the plaintiff, on the 25th day of March, 1893, at the county of St. Clair, aforesaid, being then and there the owner of a large tract of valuable land, conveyed the same by deed of that date, duly executed and acknowledged and delivered, to Samuel H. Leathe, the defendant, for and in consideration of one dollar and other valuable considerations moving from him, the said Samuel H. Leathe, defendant, to it, the said Belleville and St. Louis Railway Company, plaintiff; and the plaintiff avers that the other valuable considerations moving from said defendant to said plaintiff were the promise and agreement of said defendant then and there made in consideration of said deed and as payment of the purchase money of the property conveyed by said deed, that he, the defendant, would then and there satisfy and pay the indebtedness of the plaintiff then and there existing and due from the plaintiff to divers parties; and the plaintiff further avers that it was then and there indebted to Edward L. Thomas in a large sum of money, to-wit, in the sum of $60,000, of which the defendant then and there had full notice; and plaintiff further avers that the said indebtedness of the plaintiff to Edward L. Thomas was part of the indebtedness of plaintiff then and there promised to be paid by said defendant as part of the consideration of said deed; and plaintiff further avers that at the September term, 1893, of the circuit court in and for said county of St. Clair and State of Illinois, and the court having full jurisdiction over such matters, the said Edward L. Thomas commenced action against the Belleville and St. Louis Railway Company to recover said amount due him; and plaintiff further avers that it caused the said defendant to be notified of the pendency of the said suit, and authorized the said defendant to use its said name in defending said suit; and plaintiff further avers that the defendant, in pursuance of said notice, employed counsel and filed pleas and entered into and upon the defense of said cause; and plaintiff further avers that the issue of said cause was as to whether the amount claimed by said Thomas was then due and payable to him, the said Thomas; and plaintiff further avers that after the trial of said cause, upon evidence introduced by the said defendant as well as by said Edward L. Thomas, the said court rendered judgment on said cause for said Thomas in the sum of $53,022.23, which said judgment is in full force and effect and which plaintiff is ready to show by the record thereof, here now shown in court; and plaintiff avers that said judgment has not been paid, but remains still due and unpaid and in full force and effect; and plaintiff further avers that before the trial of the said cause, and while the same was standing for trial, the said defendant, in his name and in the name of the Belleville and St. Louis Railway Company and the Belleville City Railway Company, filed in said court a bill for injunction against the said Edward L. Thomas, to enjoin him from proceeding with said cause and from recovering a judgment against the said Belle-ville and St. Louis Railway Company on said indebtedness; that among other things, one of the issues made by said bill, and answer thereto, was as to whether the amount claimed by said Thomas from said Belleville and St. Louis Railway Company was then due and payable, and whether said defendant had assumed, by reason of said deed and as a consideration therefor; the payments of the debts of the said Belleville and St. Louis Railway Company, of which the amount claimed by said Thomas was one; that upon said issue a full hearing was had, and it was then and there fully adjudicated and said injunction was denied and said bill dismissed, and thereupon said judgment was rendered in said suit brought by the said Thomas against the Belleville and St. Louis Railway for said sum of $53,022.23 and costs of suit; and plaintiff avers that it was then and there fully determined and adjudicated by said court that said sum was due and payable to the said Thomas, and that the said defendant had assumed the payment of said indebtedness of said Belleville and St. Louis Railway Company in consideration of the conveyance to him of said property by said deed, as aforesaid, and that the court determined and adj udicated the same upon the voluntary coming into said court by the said defendant and asking by said bill an adjudication thereof, all of which the plaintiff here now shows to the court by the record and proceedings and judgment and decree of said court in said cause, here now presented to the court; and plaintiff avers that afterwards, to-wit, on the day and year aforesaid, at the county aforesaid, said defendant, in consideration thereof, promised the plaintiff to pay it the said amount of said judgment according to its legal tenor and effect, for the use aforesaid, when thereunto afterwards requested, and although often requested, defendant has not paid said several sums of money, or any or either of them, or any part thereof, to plaintiff for the use aforesaid, but to do so has hitherto and still doth refuse, to the damage of the plaintiff, for the use aforesaid, of $60,000, wherefore it brings suit,” etc.
The defendant pleaded the general issue and a jury was waived and the case was tried by the court. The plaintiff introduced the record in the action at law in the St. Clair county circuit court wherein Edward L. Thomas was plaintiff and the Belleville and St. Louis Railway Company was defendant, in which action the plaintiff recovered judgment against the defendant for $53,022.23, and proved that the plaintiff in error was given notice to defend, and that he did defend in the name of the railroad company; also the record in the chancery suit wherein the plaintiff in error, the Belle-ville and St. Louis Railway Company and the Belleville City Railway Company were complainants and the defendant in error was defendant, in which suit the evidence was preserved in the decree, and rested. The defendant introduced no evidence, but at the close of the plaintiff’s evidence moved the court to exclude the evidence and render judgment for the defendant. The court took the case under advisement, and thereafter sustained said motion to exclude the evidence and rendered judgment for the defendant and against the plaintiff for costs, which judgment, upon writ of error, was affirmed by the United States Circuit Court of Appeals.
No evidence was introduced to sustain either the first or second plea filed by the defendant in error, and the recovery was had under the third and fourth pleas, as clearly appears from the report of the referee referred to in the majority opinion. If the judgments of the circuit and Appellate Courts can be sustained, they must be sustained under the third and fourth pleas, to which a replication of res judicata was interposed, and which replication, if good, is a bar to a recovery under the third and fourth pleas and defeats the defendant in error’s set-off.
We think it clear if the defendant in'error had recovered a judgment in the United States Circuit Court against the plaintiff in error upon the case made there, and that judgment had been satisfied, it would be a bar to a recovery upon the cause of action set up in the third and fourth pleas of set-off filed in this case, as it is evident from the declaration filed in the case of the Belleville and St. Louis Railway Company, for the use of Edward L. Thomas, against Samuel H. Leathe, and the third and fourth pleas of set-off filed in this case, that the defendant in error in each case was attempting to recover judgment against the plaintiff in error for the same demand, viz., .the debt of the Belleville and St. Louis Railway Company to the defendant in error, which it was averred the plaintiff in error had agreed to pay. The defendant in error failed in the case in the United States Circuit Court by reason of the fact that he did not prove that the plaintiff in error had agreed to pay said debt. In that suit the defendant in error relied upon the record in the action at law brought by him against the Belleville and St. Louis Railway Company and the record in the chancery suit brought by the plaintiff in error and said railway companies against him, to establish his debt and the plaintiff in error’s promise to pay it, but the court held'the proof was not sufficient to entitle him to recover judgment against plaintiff in error. The United States Circuit Court found the issues for the defendant and rendered judgment against the plaintiff for costs, which was a final judgment.
In Zimmerman v. Zimmerman, 15 Ill. 84, a judgment was entered by a justice of the peace showing that the parties appeared before the justice and went to trial, and after hearing the testimony he rendered judgment against the plaintiff for costs. This was held to be a judgment in bar and constituted a good defense to a-subsequent suit brought upon the same cause of action. The defendant in error failed in the United States Circuit Court because his evidence was insufficient to establish his rig'ht to judgment. The defendant in that case, in effect, by his motion demurred to the evidence. The court, in passing upon that motion, held the evidence insufficient to entitle the plaintiff to recover and gave judgment for the defendant. Where the plaintiff fails to make a case and the court gives a peremptory instruction in favor of defendant, and the court renders judgment upon a verdict of the jury returned under such direction, it can not be doubted the judgment is final and upon the merits and can be pleaded in bar of another action based upon the same facts. We see no difference between the legal effect of such judgment and the judgment rendered by the United States Circuit Court. The fact that the plaintiff in the case in the United States Circuit Court failed to prove, by sufficient or competent evidence, that the defendant promised to pay to him the debt of the Belleville and St. Louis Railway Company and judgment was rendered in favor of the defendant by reason of the failure to make such proof, did not leave that question an open one, subject to be re-tried in another suit. A plaintiff cannot try his case by piecemeal. In the case at bar the defendant in error submitted proof of the alleged parol promise of the plaintiff in error to pay the debt due him by the Belleville and St. Louis Railway Company, and that said debt was included within the provision “other valuable considerations to it from him moving,” contained in the deed of March 25, 1893. Under the declaration on file in the case in the United States Circuit Court the question of the promise of the plaintiff in error to pay said debt and that the same fell within the said provision contained in said deed was put in issue by the plea filed in that case, and-the same evidence would have been material and admissible there. The defendant, however, saw fit to rely upon the record evidence only, and in this case he is bound by the record made in that case.
• The doctrine of res judicata embraces not only what has been actually determined in the former suit, but also extends to any other matters properly involved and which might have been raised and decided in that suit. (Bennitt v. Wilmington Star Mining Co. 119 Ill. 9.) In Umlauf v. Umlauf, 117 Ill. 580, on page 584 the court said: “No principle is better settled than that where a question proper for judicial determination is directly put in issue and finally determined in a legal proceeding by a court having competent authority and jurisdiction to hear and determine the same, such decision and determination of the question will be deemed final and conclusive upon the parties and their privies in all future litigation between them in which the same question arises, so long as the judgment remains unreversed or is not otherwise set aside.” In Bailey v. Bailey, 115 Ill. 551, at page 557 the court said:. “As said in Rogers v. Higgins, 57 Ill. 244, the controversy cannot be re-opened to hear additional reasons which before existed and were within the knowledge of the party, in support of the same cause of action. The principle of res judicata embraces not only what actually was determined in the former case, but also extends to any other matter properly involved and which might have been raised and determined in it.” And in Harmon v. Auditor of Public Accounts, 123 Ill. 122, at page 133, the court quoted with approval the language of the Supreme Court of the United States in Town of Beloit v. Morgan, 7 Wall. 619, where it was said: “The principle of res judicata reaches further. It extends not only to the questions of fact and of law which were decided in the former suit, but also to the grounds of recovery or defense which might have been, but were not, presented.”
From an examination of this record we have been forced to the conclusion that the circuit and Appellate Courts erred in holding that the judgment of the Circuit Court of the United States was not a bar to the defendant in error’s right of recovery in this case under the third and fourth pleas of set-off filed by him, as we think it apparent the question whether or not the plaintiff in error agreed to pay to the defendant in error the debt due him by the Belleville and St. Louis Railway Company was in issue in that case and was decided therein adversely to the defendant in error, and that that judgment was a final judgment upon the merits and binding upon the defendant in error, and is res judicata of the question presented by said third and fourth pleas of set-off, and that there can be no recovery under the first and second pleas for want of evidence.