Dissenting Opinion.
Black, J. —In the opinion adopted' by the majority of the court, there is no expressed purpose to antagonize in any way the decision in Goble v. Dillon, 86 Ind. 327; but, on the contrary, there is manifested an intention to decide in accordance with that case, and it appears to be supposed that it supports the conclusion reached in the case at bar upon the subject of res judicata; yet this conclusion is in conflict with the decision of the Supreme Court in that case. Therefore I am constrained to dissent from the conclusion reached by my brethren.
The particular passages quoted by my learned brother from the opinion in Goble v. Dillon, supra, of course, should be interpreted with reference to the decision of the matter to which the argument related. The case is authority for what was decided. The matter there decided, pertinent to the case at bar, was, that the second paragraph of the answer of Dillon showed a good defense to the complaint of Goble.
In Goble v. Dillon, supra, the court refused to extend the estoppel to the degree to which it had been extended in the cases cited in the New York Court of Appeals. In the criticism of certain New York cases, *413the adverse remarks were expressly limited to the cases in the Court of Appeals of that state. Reference was made to the case of Bellinger v. Craigue, 31 Barb. 534, but the conclusion reached in it was not criticised.
If, in Goble v. Dillon, supra, the doctrine of the cases referred to in the Hew York Court of Appeals had been adopted, our Supreme Court would have held Goble to be estopped by the judgment recovered against him on default by Hobbs. Our court refused to go to that extent.
In Goble v. Dillon, supra, it was decided that, in the state of facts shown by the answer of Dillon, it would not merely be presumed (as stated in the principal opinion herein) that the matter of malpractice was litigated as a defense, but also that as a cause of action by Goble against Dillon it was res judicata.
It is said in the principal opinion that the paragraph of answer under discussion does not deny that the services of the appellees to the trust estate were valuable, and that there is nothing in it inconsistent with a recovery by appellees of the full value of their services to the trust estate. The pertinence of this statement is not clearly apparent. Without admitting or denying what is there stated, or going into the subject, it may be'said that the judgment sued on was obtained against the appellant personally, and that it is sought to set up against it “failure and neglect on the part of the appellees to protect the appellant personally.”
If the above mentioned statement in the principal opinion be intended to indicate that the counterclaim under discussion contains any matter that could not have been set up by way of counterclaim in the action in which the judgment was obtained in the sister state, it is not apparent how it has become matter for counterclaim in the suit on that judgment.
*414But I do not understand the principal opinion in this case to proceed (at least in the first instance) upon the theory that the matter set up in the counterclaim in this action upon the judgment could not have been set up as a counterclaim in the action in which that judgment was obtained. Such an idea is not carried out and definitely asserted; but it is stated that the matters set out in the counterclaim could have been pleaded by way of recoupment, and that the counterclaim asks damages for the breach of the contract sued on in Illinois, and the opinion seems to proceed upon the theory that, if the matter here set up by way of counterclaim was involved in the issue in the former action as a defense only, it can now again be brought forward for readjudication under a counterclaim, it being assumed that, if it was involved in the issue as a defense only, it is not to be presumed that it thereby became res judicata, so as to prevent its becoming again involved. when pleaded as a counterclaim against the judgment rendered for the plaintiff in the action where it was involved in the issue as a defense.
But, after seeming to proceed upon such theory, it is in the end stated that the matter could have been pleaded by way of recoupment, at common law, which, of course, is presumed to preváil in Illinois, and that the negligence set out in the counterclaim would not have been admissible under the general issue, and that, although it could have been pleaded by way of recoupment, it would have tended to defeat neither the whole nor a part of the value of such services.
To be proper matter for recoupment, the defendant’s claim must have arisen out of the same transaction, the same subject-matter as the plaintiff’s claim, and the damages must have been such as the defendant could have recovered in a cross-action against the *415plaintiff.' The plaintiff’s conduct must have been the cause of the injury for which the defendant seeks to recoup. 22 Am. and Eng. Ency. of Law, 340, et seq.
Eecoupment is properly applicable where the same contract imposes mutual duties and obligations, and one party seeks a remedy for the breach of the duty by the second, and the second meets the demand by a claim for a breach of duty by the first. It is a keeping back of something alleged to be due, because there is an equitable reason for withholding it. Anderson’s Law Diet., title “Eecoupment.”
In 21 Am. and Eng. Ency. of Law, 224, under the title “Cross-Claims, Set-Offs, and Becoupments,” it is said: “Where a defendant has any of these defenses or claims, he may set them forth and prove them in an action against him, if they have to do with the same subject-matter, but it is generally optional with him to do so or not. If he allows any of these matters to be litigated he will be bound by the decision. * * * If an account or claim is unintentionally included in a suit or set-off and is really adjudicated the finding is just as conclusive as in any other case. In short, it may be said that if these defenses are submitted they become subject to the general rule as to res judicata; if not presented they may, in general, become the subject of a subsequent action.”
In 2 Ency. Pl. and Pr., 1027, et seq., under the title, “Assumpsit,” it is said: “According to the strict original principles of the common law, no defenses were admissible under the general issue except such as went in denial of the truth of the declaration.
“Gradually, however, not only such defenses as deny the allegations in the declaration, but almost all matters in avoidance, have been held good defenses under the plea of non-assumpsit.
“Until now the general issue plea may be said to *416deny not a part of the case only, but the whole case to such an extent that under it the defendant is generally entitled to give evidence of anything which shows that, ex aequo et bono, the plaintiff ought not to recover.”
In Basten v. Butter, 7 East. 479, a rule as to notice was laid down, that where a specific sum has been agreed to be paid, notice ought to be given; otherwise, the plaintiff would have ground to complain of surprise, if evidence were allowed to show that the work and materials were not worth as much as was contracted to be paid. But that on a quantum meruit, the plaintiff must come prepared to show that the work done was worth so much, and, therefore, there could be no injustice to him in suffering this defense to be entered into without notice. See 7 Wait, Ac. and Def. 396, 556; Sutherland, Dam., section 168.
In Higgins v. Lee, 16 Ill. 495, it was held that a party to a contract for finishing a building, who sustained damages by reason of poor materials and inferior workmanship, might recoup under the general issue, by way of reducing the recovery under the quantum meruit or quantum valebant counts.
In Turner v. Retter, 58 Ill. 264, it was held that the defendant in trover for a note inclosed for collection might, under a plea of the general issue, recoup his services and expenses in collecting.
In Cooke v. Preble, 80 Ill. 381, it was held that in a suit to recover the price of a derrick made under a special contract, the defendant might, under the general issue, recoup any damages he had sustained by defects in the work, and delay in completing the same.
In Wadhams v. Swan, 109 Ill. 46, 62, it is said: “Recoupment, in its strict common law sense, is a mere reduction of the damages claimed by the plaintiff, by proof, under the general issue, of mitigating cir*417cumstances connected with or growing out of the transaction upon which the plaintiff’s claim is based, showing that it would be contrary to equity and good conscience to suffer the plaintiff to recover the full amount of his claim. (5 Rob. Prac. 265.)” It is further said, that by reason Of the general issue having been filed, there could be no question as to the appellant’s right to recoup, in that case, to the extent warranted by the proofs.
In Stubblefield v. Soule, 21 Ill. App. 154, it was held that in an action on a lease to recover damages for breach of covenants therein, the defendant might introduce by way of recoupment under the general issue, without notice, evidence tending to show that the plaintiff had represented the roof to be in good condition, but that it was leaky, and the defendant’s goods were injured in consequence. See, also, Babcock v. Trice, 18 Ill. 420; Murray v. Carlin, 67 Ill. 286.
In Merriam v. Woodcock, 104 Mass. 326, a judgment recovered by a laborer for the full amount of his claim, in an action wherein there was a defense under an answer alleging negligence and unskilfulness in the performance of the services, and charging that the services rendered were of no value, was held to be a bar to a subsequent action brought by the defendant in the former action against the laborer for such negligence. It was said by the court: “It is apparent - that the subject-matter of judicial controversy here has already been drawn in question, and directly put in issue in the former action.. * * * A recovery in the first action could not have been had without establishing a performance of the contract, or at least valuable services rendered under it. * * * In this case, plainly it is of no consequence that the answer did not seek technically to recoup in the first action; *418for the facts set up in it, if proved, would have made out a complete defense; and the difficulty is, that the same facts are made the foundation of the present action. The subsequent remedy for the excess depended on defeating the .first action, in which there could have been no recovery without proof of performance of the contract, or of valuable services rendered under it. The issue once found in favor of the plaintiffs, followed by judgment thereon, is forever settled between these parties.”
Howell v. Goodrich, 69 Ill. 556, was an action on the case brought by Goodrich- against Howell for malpractice. Howell had sued Goodrich before a justice of the peace for professional service in the case, and had recovered a judgment for $25.00, which Goodrich had paid on execution. In the suit before the justice, Goodrich had pleaded the general issue. Under that issue there was evidence relating to the defense of malpractice. The court said: “The testimony clearly shows that the defense of malpractice was made before the justice, and that Goodrich examined a witness upon the subject.” The recovery in that case having been for the whole amount of the claim sued for, $25.00, shows that it was found that there was no malpractice in the case. It was further said, that there could be no doubt Goodrich was entitled, if he so sought, to recoup in the action for services “whatever damages he might have sustained from unskilful treatment to the extent of the claim sued for, in order to lessen or defeat .a recovery in that suit, and thus legitimately have tried the question of malpractice.”
In Sutherland, on Damages, section 168, speaking of recoupment, it is said: “The right to make such defenses is no longer in question; the plaintiff must show his performance of a condition precedent as a basis of the recovery either of an agreed sum or on a *419quantum, meruit; and there is included in the mere right to make a defense the right to rebut the evidence of performance; and where the value is not fixed by agreement the amount reasonably due for such performance. In such cases, to the extent that the plaintiff’s recovery proceeds on proof of performance or its reasonable value, the defendant, if he dispute either as shown by the plaintiff, must defend, or lose all right to contest the conclusion so arrived at or to redress for the deficiencies of the plaintiff’s performance.”
Lawson v. Conaway, 37 W. Va. 159, was an action for damages for malpractice. It was in evidence that for his services in the same behalf the defendant had recovered a judgment against the plaintiff; and a question was discussed as.to whether this judgment before the justice estopped the defendant therein from prosecuting his cross-action for malpractice. The court, per Lucas, President, said: “The question involved is this: In a suit for malpractice, is the plaintiff estopped by a judgment in an action against him, brought by the physician, to recover compensation for services rehdered in the same case. Upon this subject' the decisions are much divided. * * * The dividing line between the New York decisions and those of the states which have taken a contrary view is upon the fact whether the judgment obtained by the physician was a judgment by default; for all the cases concede that if the patient appeared and defended the action on the ground of neglect or want of skill, the judgment against him is an estoppel, and he cannot bring his cross-action for malpractice. But when the judgment is by default, and no defense whatever has been made, the majority of the cases would seem to hold that the question of malpractice or diligence and skill was not involved, and that the patient has not impaired his right of action by neglecting or refusing to appear to *420the suit against him. * * * I think a safe conclusion to be reached is that if the physician sue for compensation for his services, and there is no appearance by the patient, a recovery by the former does not estop the latter from bringing his cross-action for malpractice; but if he appear (unless the record show that it was not to defend, but solely to disclaim the waiver of his own right) he is estopped by the recovery. The right to sue for malpractice is both a defense and a subject for cross-action, and if used for either purpose —that is, either by way of defense or recoupment — it destroys the vitality of the claim, if sought to be used in an independent action; and, if the patient has appeared in the suit by the physician, he was bound to make all the defenses he had, and hence he is estoppéd by the fact that he had a defense of malpractice, of which he failed to avail himself. But, if he has not appeared, then the question of malpractice has never been adjudicated, and he is at liberty to assert his claim by an independent action.”
In Fischli v. Fischli, 1 Blackf. 360, it was held that “whenever a matter is adjudicated, and finally determined by a competent tribunal, it is considered as forever at rest. * * * This principle not only embraces what actually was determined, but also extends to every matter which the parties might have litigated in the case.”
In Athearn v. Brannan, 8 Blackf. 440, it was held that a record produced to support a plea of former adjudication should be of a judgment in a suit in which the cause of action subsequently sued for might have been given in evidence.
In Crouse v. Holman, 19 Ind. 30, 37, it was said of this rule: “As we understand the latter branch of this rule, it relates simply to every matter which might have been litigated under the pleadings in the cause.”
*421In Bradley v. Bank of the State of Indiana, 20 Ind. 528, it was said: “The issues on the attachment in the case were properly made up for trial, at the time of the trial on the merits of the cause of action; and hence, we must hold that they were then tried.” Citing Fischli v. Fischli, supra.
In Duncan v. Holcomb, 26 Ind. 378, it was said: “It is only those matters involved in the issues made by the pleadings, that are considered res adfudicatae.”
In Comparet v. Hanna, 34 Ind. 74, 77, it is said: “It is not only that which the parties actually litigate, which is put at rest by the judgment, but also every other matter which they might have litigated under the issues in the cause.”
In Ricker v. Pratt, 48 Ind. 73, it was held, in a suit to enjoin a sale under a foreclosure, that the defendant in the foreclosure suit was bound to set up all his defenses or lose the benefit thereof, “for it is a rule of law that the judgment of a competent tribunal not only settles the matter between the parties as to defenses made, but also as to such others as might have been made.”
In Ballard v. Franklin Life Ins. Co., 81 Ind. 239, it is said, that, “in general, no allegation or evidence, tending to impeach a judgment, will be admitted in any subsequent distinct controversy between the parties. When a matter is finally determined by a competent tribunal, it is considered as forever at rest, not only as to what was actually determined, but as to every other matter which the parties might have litigated in the case. * * * And the rule is the same where a suit is sought to be sustained upon allegations which would have been a good defense in a previous action between the parties.”
In Faught v. Faught, 98 Ind. 470, a judgment quieting title upon a complaint asserting title by virtue of *422a will, was held to be a bar to a subsequent suit by a party defendant to the former suit against the plaintiff therein, to set aside-the same will on the ground that the testator was of unsound mind.
In McFadden v. Fritz, 110 Ind. 1, it was said of a judgment in a replevin action, that it “was undoubtedly conclusive as to all the questions litigated, or that might have* been litigated under the issues.”
In Woolery v. Grayson, 110 Ind. 149, it was said: “Under the familiar rule declared in Fischli v. Fischli, 1 Blackf. 360, the decree would estop the appellant, even though there had been no express adjudication upon the question of the validity of the deed of trust, because the question of its validity might have been litigated in that suit.”
In Elwood v. Beymer, 100 Ind. 504, it was said, that the doctrine of Fischli v. Fischli, upon the point now under consideration, is the recognized law of this State; and it was held that as to a matter upon which the appellant might have filed her cross-complaint in the former suit and which she might then have litigated, she was estopped by the judgment in such former suit.
In Moore v. State, ex rel., 114 Ind. 414, it was said: “However much this court may have departed from the doctrines declared in our early cases upon other questions, it may well be said, we think, that, ‘without variableness or shadow of turning/ we have adhered, and still adhere, strictly and tenaciously, to the rule declared in Fischli v. Fischli, supra.”
In Howe v. Lewis, 121 Ind. 110, 114, it is said: “Everything which might have been adjudicated under the issues in a cause will be presumed to have been adjudicated. * * * If a cause of action was involved in a former action, either as a set-off, counterclaim or defense, it is barred by the judgment.”
In Gilmore v. McClure, 133 Ind. 571, it was held, that *423“a judgment is conclusive as to all matters which were or might have been litigated in the action, and a bar to any further litigation upon the same cause of action between the same parties, or those claiming under them.”
In Reichert v. Krass, 13 Ind. App. 348, 353, this court said: “The case of Goble v. Dillon, 86 Ind. 327, was an action against a physician for malpractice. The physician answered, that prior to the action for malpractice, he had instituted a suit against the plaintiff before a justice of the peace to recover the value of his services, being the same services out of which the alleged malpractice arose; that the plaintiff appeared to that action and filed an answer of general denial, that the cause was tried and he recovered judgment for his services. It was held that the action for malpractice was necessarily involved in the action to recover for the services, and that the judgment rendered was a complete adjudication of the claim for damages on account of the alleged malpractice. The principle announced in that case has been frequently followed by the supreme court and by this court. Allen v. Jones, 1 Ind. App. 63; Howe v. Lewis, 121 Ind. 110.”
It was said by this court in Beaver v. Irwin, 6 Ind. App. 285: “In order to determine what was in issue in the former adjudication, resort must be had to the pleadings there, and everything'that might have be,en litigated under the issues as formed will be conclusively presumed to have been litigated.”
Let us suppose the defendant in an action to have had a demand which he might set up in such action either as a defense or as a counterclaim, and let us suppose the defendant to have pleaded such demand specially as a defense, and to have filed no other pleading; and let it be further supposed that a trial has been had, with or without reply, and that the plaintiff *424recovered upon Ms complaint. In a subsequent action upon such judgment, could the defendant set up the same matter as a defense? Manifestly he could not do so, and why? Because his demand has been adjudged to have no valid existence, or because, so far as it constitutes a valid, claim, it has been applied, in the former action, in reduction of the plaintiff’s judgment. If in the former action the plaintiff recovered upon his entire cause of action, it was therein adjudged that the defendant’s cause of defense had no valid existence. If the defendant’s demancL was of such a nature that it could be pleaded either as a defense or as a counterclaim, it would be sustained as a defense by the same evidence that would be necessary to sustain it if pleaded as a counterclaim. If, when pleaded as a defense, it was adjudged to have no valid existence as a defense, it must be concluded that the evidence was not sufficient to support it as a legal cause of defense. If it had no legal existence as a defense, can it be supposed that the same evidence would make it valid as a counterclaim? The subject-matter could not be again put in issue and made a matter of judicial determination.
If, instead of the special answer above supposed, the defendant had filed a general denial, or any pleading wMch would make an issue under which such matter of defense could be given in evidence, the effect of a judgment for the plaintiff would be the same; and that is the condition of the matter now here under consideration.
If a claim set up in defense has been adjudicated in favor of the plaintiff, the defendant, as against the judgment obtained, cannot set up the same matter, dependent upon the same evidence, either as a defense or as a counterclaim; and if it could be proved under any form of issue made, it will be presumed to have-been adjudicated.
*425If evidence introduced in support of the defense so pleaded were not sufficient to protect the defendant from the recovery of á judgment against him, how could it be supposed to be sufficient to support a, counterclaim which, “to be available to a party, must afford to him protection in some way against the plaintiff’s demand for judgment, either in whole or in part?” 4 Am. and Eng. Ency. of Law, 332.
Is It not true that the facts set up in the counterclaim in the case at bar would have been sufficient to defeat the recovery of the judgment?
Is it not shown by the counterclaim that the appellant was injured by the misconduct of the appellees to the full amount of their fees for services ? The services were of no value to the appellant personally, and the judgment was sought and recovered against him personally upon a quantum meruit, on which the appellees were entitled to recover only what they deserved to be paid for their services, being the reasonable value of services rendered by the plaintiffs for the defendant.
The idea with which the principal opinion closes seems to be, that the services of the attorneys were valuable to the “trust estate,” but not valuable to the appellant, and that, though he was injured personally by the appellees in the rendering of those services to the full extent of the demand made against him personally in the action in which the judgment here sued on was obtained, yet, upon the assumption that the services were valuable to the trust estate, the appellee could not, under the general issue, show his own injury in the action against him, where, it is claimed, “it would have tended to defeat neither the whole nor a part of the value of such services.” Yet, it is held, he may set up, by counterclaim in the action on the judgment, the matter which, it is said, he could not, in the former action, prove as a defense.