On Application for Rehearing.
Breaux, J.Plaintiffs, through their counsel, urge that this court has fallen into an error in its decision on the application for writ of certiorari in the issues involved as res nova, when instead, we should have considered them settled by the effect usually given to the thing already passed upon and finally adjudged with the force and effect always attending the res judicata.
The position taken renders it necessary to restate some of the facts.
In the ease of Goldman vs. Goldman and Masur filed in 1895, the court a quo decided that the defendants, Goldman and Masur, could not plead as an offset to a note, he (L. H. Goldman) held, the bond he had executed in their favor in which he had obligated himself, for a specific time, not to engage in the retail merchandize business in .Monroe, La.
■ Defendant’s demand, based on a contract not to engage in business under a penalty of two thousand dollars, if plaintiff violated it, was not allowed; but defendants were reserved all their legal rights to proceed against plaintiff for its violation.
On appeal to this court the judgment was affirmed; the court holding that the defendants pleaded in compensation the amount of the penal obligation of the plaintiff not to engage in business, and that this penal obligation was conditional in its character, and if susceptible of. enforcement at all, the amount is modified in case of the partial execution of the principal obligation; that the plaintiff denied any violation of the agreement, in aid of which the penalty was stipulated; if there was any, it was but partial and inconsiderable; that a demand in compensation must be equally as liquidated as the claim against which it is pleaded, and that demand in a penal clause, unliquidated and disputed, cannot be pleaded against a promissory note.
The judgment of the lower court, including the reservation made, •was affirmed. Goldman vs. Goldman & Masur, 47th Ann. 1463.
Afterward, Goldman and Masur brought suit on the contract, and *778on appeal to the Court of Appeals it was decided that the proof of the nature and extent of the damages caused by defendant’s breach of contract was not specific enough, and non-suited plaintiffs, as previously they had been non-suited in the District Court.
1st. Defendants complain of the decree of this court rendered in the proceedings by the writ of certiorari, on the ground that it was too late to decree that the obligation involved made prima facie proof of the extent of defendants’ right to be accepted as the measure of damages, unless the defendants can affirmatively establish not only a right to a reduction, but its extent.
In our view, the decision before cited is not as far reaching in its effect as interpreted by the learned judges of the Court of Appeals. It held that both claims, the claim of plainriff on his note secured by mortgage, and the claim of defendants, were not “equally liquidated and demandable,” and that the demand in a penal clause cannot be pleaded in compensation against a promissory noté.
It does not follow from those views as expressed in the cited decree that the burden of proof was made thereby to shift from plaintiff to defendants, and that the prima facie presumption arising from such an obligation, was brought thereby to an end.
The claim presented in support of defendants’ (Goldman and Masur) plea, did not, as in case of the note, identified with the mortgage, make proof of itself. It would have been needful in case the proof had been admitted to prove the breach of contract and dispose of the questions which do not arise in a suit on a note and mortgage, and for that reason this court sustained the lower court’s ruling dismissing the demand as in case of non-suit.
2nd. Defendants set forth that this case was before the Court of Appeals for the Second Circuit at its January term, 1897, and that that court, following the decision before cited, construed the contract sued on, as an obligation with a penal clause, entitling plaintiff, on proof of its breach, to the recovery of such damages as he might prove growing out of the breach; that the character of the obligation had been determined, and with whom was the onus of proof, as between the parties, was finally decided and the cause remanded for the sole purpose of enabling plaintiff to show the quantity of damages which he suffered; that the decree was conclusive and final, and not subject to the revision of the court; that the Circuit Court on second appeal in the case, was limited to the sole question of determining, from the *779evidence, how much damages, if any, plaintiff had suffered by the alleged breach of contract; and that the certiorari jurisdiction of the Supreme Court having attached long subsequent to the rendition of the first decree rendered in January, 1897, it is without jurisdiction to review any legal question decided then, and is limited to the review of the cause, as presented to the Circuit Court at its last meeting, in which the judgment now under review was rendered.
We find as a fact, it is not disputed that the last judgment rendered during the current year is clearly within the jurisdiction of this court under Article 101 of the Constitution, and that all issues involved may be reviewed by this court.
The contention is that the ruling in the prior case has already disposed of the issues now raised, and that it is not within the range of possibility in law to modify them in a subsequent appeal.
There was nothing finally decided in the previous appeal. The evidence failed to furnish a basis to estimate damages. It appears, there was page after page taken, all directed to the question of violation of the contract vel non. We are informed that on this question a testimonial battle raged, and the matter of damages received little attention, particularly, from plaintiffs, who chose to rest their case, exclusively, on breach of the principal obligation and the consequent damages therefrom arising in any contingency, as fixed in the bond; and when, in the course of the trial, they did attempt to prove actual damages, they were met by the objection of irrelevancy, which was sustained by the court. This, under the view of the Court of Appeals, was erroneous. The court found that plaintiffs had a right of action, but they must prove their damages, and, to give the opportunity, the-case was remanded.
Thus, it appears that the decision which the defendant contends, fixed a right in his behalf, was one remanding the case to hear evidence under the court’s opinion as to the burden of proof.
We have examined the decisions cited by defendant’s counsel, and find that they sustain the rule, that whatever has been decided by the Supreme Court of the United States on one writ of error obviously cannot be re-examined on a subsequent writ brought in the same-suit. Clerk vs. Keith, 106 U. S. 464. Citing a number of decisions-of that court to the same effect.
Here the Supreme Court has not passed upon the point at all. The law of the case may be in full force and effect in the court a qua, and. *780should have been given due regard — as was given — on the trial in the District Court, but when it comes here, the ruling no longer controls. The defendant had acquired no vested right growing out of the court’s view.
The plea of res judicata was not pleaded; if it had been, it would have had nothing upon which to stand; there was only a ruling as to .the effect to be given to testimony, which ruling is binding upon the Court of Appeals and the District Court, but not upon this court, called upon; under the law, to review all issues not finally disposed of.
3rd. We take up defendant’s last objection in the order of his argument, that the questions involved being exclusively questions of fact, this court is without jurisdiction.
We have already given our reasons for entertaining jurisdiction, ■and from our standpoint it is manifest, after considering the reasons given, that the questions involved are not questions of fact. They involved throughout, the construction to be placed on an agreement containing a penal clause, and we held that the issues were not so ■settled as to render it no longer possible for the Supreme Court to correct an error it conceived had been committed.
We are constrained to differ from counsel, and hold that the court has jurisdiction.
Rehearing refused.
Mr. Justice Monboe not having been a member of the court when this case was submitted, takes no part in the opinion.