dissenting.
In the first action, plaintiff was seeking an accounting. She alleged that she entered into a “venture” with the defendant under which certain property would be purchased and thereafter sold at a profit which they would share. She further alleged that she gave the defendant $1,500 which he used for part of the purchase price of the property, title to which he took in his name. At the time of the first action, the property had not been sold.
After hearing before the court, the following order was entered by the court: “Plaintiff has failed to meet the burden of proof. Verdict for the defendant.”
In the present action, the plaintiff does make the same factual allegations except here she alleges that the property has now been sold and seeks a decree establishing a constructive trust.
In this State, res judicata includes not only the effect of a former judgment as a bar to a later claim on the same cause of action, but also what is known as collateral estoppel relating to the effect of a former judgment on a later action based on a different claim. Ainsworth v. Claremont, 108 N.H. 55, 56, 226 A.2d 867, 869 (1967). When the cause of action is the same, the former judgment is a bar not only as to those issues which were actually tried, but also as to all matters that might have been tried and determined. When, however, the second suit is on a different cause of action, the former *716judgment is a bar only as to those matters which were actually determined adversely to the plaintiff. McGrath v. McGrath, 109 N.H. 312, 315, 251 A.2d 336, 339 (1969); Ainsworth v. Claremont supra.
In my view, the present action is a different cause of action from the first, and therefore the collateral estoppel part of res judicata applies. Under this rule, plaintiff is barred only as to issues which were determined adversely to her in the first action. If it were clear that the verdict in the first action was based on a failure to prove that she advanced the money, I would join the court in its opinion. However, the decision of the trial court in the first action is ambiguous and too indefinite to be the basis of a res judicata claim. It cannot be determined on what issue the plaintiff failed to meet her burden. A “reasonable doubt as to what was decided in the first action should preclude the drastic remedy of foreclosing a party from litigating an essential issue”. McNellis v. First Fed. Sav. & Loan Ass’n, 364 F.2d 251, 257 (2d Cir. 1966).
The venture was to sell the property and share the profit. Since the property had not been sold at the time of the first suit, there was no profit for which to account and no breach of the agreement. It seems to me that this is at least as probable a basis for the verdict for the defendant as a failure to find that she advanced the funds. Since other grounds exist, the defendant has failed to show that the prior judgment necessarily adjudicated against plaintiff the issue whether she advanced the money. McGrath v. McGrath, 109 N.H. 312, 251 A.2d 336 (1969); 46 Am. Jur. 2d Judgments §607 (1969); A. Vestal, Res Judicata/Preclusion V-550 (1969). The property now having been sold, the plaintiff is in a different position than before and in my view her present action should not have been dismissed.
Moreover, Restatement (Second) of Judgments §61 f (Tent. Draft No. 1, 1973) states “Material operative facts occurring after the decision of an action with respect to the same subject matter may themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first....”