Argument for the Defendants.

peals, Ninth Circuit, the action of the district court was affirmed, 206 Fed., 641. In the meantime, the case of New York Life Insurance Co. v. Slocum, 228 U. S., 364, had been decided by the United States Supreme Court. Writ of error to the Circuit Court of Appeals resulted in dismissal by the Supreme Court on motion for the defendants in error, counsel for the United States not appearing. 235 U. S., 713.

There are two grounds upon which it is submitted that the judgment in the case of United States v. Weisberger does not constitute a prior determination in claimant's favor of any defense now interposed herein. If the defendant prevail in either view, the former adjudication is conclusive in no respect in the present cause.

In the consideration of the effect of a prior judgment the primary distinction is laid down by the Supreme Court in the case of Cromwell v. County of Sac, 94 U. S., 351, 353, in the following terms:

"The language, therefore, which is so often used, that a judgment estops not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate when applied to the demand or claim in controversy. Such demand or claim, having passed into judgment, can not again be brought into litigation between the parties in proceedings at law upon any ground whatever.

"But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.

"It is not believed that there are any cases going to the extent that because in the prior action a different question from that actually determined might have arisen and been litigated, therefore such possible question is to be considered

Argument for the Defendants.

as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions. On principle, a point not in litigation in one action can not be received as conclusively settled in any subsequent action upon a different cause because it might have been determined in the first action."

Numerous cases will be found in which the language used in one or the other of the two classes of cases thus distinguished is too broad to comport with a proper recognition of the distinction thus set forth by the Supreme Court, but the distinction in this case laid down constitutes that between the doctrines of bar by former recovery and that of conclusiveness by prior adjudication. This case has been followed repeatedly and without dissent, being the leading authority upon the point.

A comparatively recent decision to the same effect is that of Myers v. Radford, 231 U. S., 725, wherein the following language was used:

"As the suit in the Michigan court was not upon the identical cause of action litigated in the United States Circuit Court, the estoppel operates only as to matters in issue or points controverted and actually decided in that suit." Cromwell v. Sac County, 94 U. S., 351; So. P. R. R. Co. v. United States, 168 U. S., 1; Troxell v. D. L. & W. R. R., 227 U. S., 434.

Accordingly, the claimant must carry the burden to prove affirmatively that any defense which he may claim was settled in his favor by the prior adjudication was actually litigated and determined. He can not prevail as to any supposed presumption in his favor that issues which might well have been decided were actually decided.

The general verdict rendered upon the instructions to the jury presents three alternative possibilities as to the basis of the verdict and the judgment: Either (a) the jury found that the Secretary of the Interior was guilty of fraud in the suspension of the contract and that the contract was impossible of performance; or (b) that the Secretary of the Interior was guilty of fraud but that the contract was possible of performance; or (c) that the Secretary of the Interior

Argument for the Defendants.

was not guilty of fraud and that the contract was not possible of performance.

Counsel for the claimant evidently realize the necessity for identifying the issues of fact actually determined by the jury in order to apply the doctrines of res judicata; they admit that the verdict did not rest upon any fraud of the Secretary and that had it done so the trial judge would have set it aside, their contention being that the court clearly recognized that the verdict rested upon a finding of the impossibility of performance.

It is difficult to tell upon what ground the learned trial judge based his own opinion to say nothing of the far more speculative query as to what he considered the foundation of the verdict of the jury.

The assumption that the jury must have ignored the lack of evidence of fraud on the part of the Secretary of the Interior when that question was submitted for their determination is too violent to avail claimant. There is nothing to show that the trial judge held such a view, but if he had done so the evidence thus afforded would not suffice to identify the fact as having actually been the ground for the determination of the jury.

The courts have long recognized that when a question upon which there is no conflict of evidence is submitted to a jury, no presumption that they were not confused thereby can be indulged. The presumption as to what disposition a jury may have made of questions upon which there was no conflict in the evidence is vital as to new trials. It is submitted that there is at least as little presumption that the jury decided the contract to be impossible on account of the entire lack of evidence of fraud, as regards the application of the doctrine of res judicata, as there would be if a new trial were being urged.

Nor is it a valid argument that, since the two questions were submitted to the jury and the result was a verdict for defendant, claimant is entitled to a finding that some fact or some issue decided in his favor shall now be deemed res judicata.

Claimant can not urge that to insist upon this requirement is harshly to rob him of the fruits of his successful defense

Argument for the Defendants.

of the case brought by the United States. In that case it was possible for Weisberger to have moved for special findings by the jury. He elected not to do so and thereby lost the benefit which findings in his favor might have given him in this case, namely, certainty as to the basis of the verdict. But his omission to make such a motion was a judicious choice. It freed him from the new trial which would have been inevitable, as is deducible from claimant's own admission, had the jury found the Secretary of the Interior guilty of fraud, and freed him also from the great risk of the granting of a new trial had the jury specially found the contract impossible of performance, and thereby made possible a judgment in his favor in the former case.

He now desires to obtain the benefit of certainty as to the issues decided in the other suit for their bearing upon the suit at bar, after having enjoyed very obvious advantages from the very uncertainty as to which of the same issues was adjucated in the prior case.

The rule is that the burden is upon claimant to show what was found in the prior suit and that extrinsic evidence may be introduced for the purpose of identification of issues.

He has failed to introduce any such evidence and urges that the benefit of the doctrine of res judicata be extended to him without his having identified the "thing adjudicated "— whether fact, point of law, right or claim-which we submit is a basal prerequisite to the enjoyment of the doctrine. He submits as the "res "" a mere alternative between two undetermined points of facts and would open the doctrine to fields of speculation which we believe unjustified.

The following authorities outline the underlying principles applicable. Packet Co. v. Sickles, 5 Wall., 580; Russell v. Place, 94 U. S., 606; De Sollar v. Hanscome, 158 U. S., 216; Bell v. Merrifield, 109 N. Y., 202; Hooker v. Hubbard, 102 Mass., 239; Lewis v. O. N. & P. Co., 125 N. Y., 341; Marble Savings Bank v. Board of County Commissioners, 23 Wash., 766; Budlong v. Budlong, 32 Wash., 672.

The second ground upon which defendant asserts that the case of United States v. Weisberger is not conclusive of any issue involved herein is that the former suit was not

Opinion of the Court.

finally determined upon its merits. Hughes v. United States, 4 Wall., 232.

It is obvious that the jury considered the case of United States v. Weisberger upon its merits. The consideration by the district judge, however, and by the Circuit Court of Appeals of the motion for judgment notwithstanding the verdict, was entirely without jurisdiction.

Moreover, on review before the Supreme Court jurisdiction to consider the merits was lacking and that in view of the constitutional law existing the disposition of the case was not upon its merits and as such is not conclusive in the present suit. Slocum v. New York Life Ins. Co., 228 U. S., 364.

There is another phase of the doctrine leading to the result urged above. It has universally been held that where the condition of fact or the law applicable when a former case was tried has been altered subsequently, the former adjudication, in view of the altered circumstances, will not be considered as an adjudication on the merits so as to be conclusive upon the parties to a later suit. 23 Cyc., 1161.

This doctrine is a subdivision of the rule that a judgment must have been considered on its merits to be conclusive. It has been applied under a great variety of circumstances as related to an alteration in the circumstances of fact.

As regards a change in the law the authorities are less numerous, but the doctrine is well settled that where there has been a change of law so that the relation of the parties has been altered, the former adjudication will not be deemed conclusive. Lewis v. Pima County, 155 U. S., 54; Utter v. Franklin, 172 U. S., 416; Third National Bank v. Stone, 174 U. S., 432; United States v. Rand, 53 Fed., 348.

HAY, Judge, reviewing the facts found to be established, delivered the opinion of the court:

This is a suit brought by the plaintiff, Theodore Weisberger, against the United States for damages arising from the suspension of a contract entered into by the plaintiff with the United States.

On January 5, 1907, the plaintiff entered into a contract with the United States whereby he agreed to complete the work described as schedules 6-A and 7-A of the main canal,