Reynolds v. Pittsburgh, Cincinnati & St. Louis Railway Co.

Welch, C. J. The reply admits the identity of the cause-of action in the two cases. In other words, it is admitted that the former action was brought upon the same contract as that sued upon in the present case, namely, a joint contract on the part of the two companies to carry the goods-in question from Cincinnati to Chicago. No plea in abatement, on account of the non-joinder of both companies, was interposed in that action. On the contrary, the record shows that it was tried upon its merits. The reply admits, in substance, that the defendant in the former case denied the- making of the contract, by alleging that the company never agreed to carry the goods to Chicago, but only agreed to carry them part of the distance, namely, to Richmond, Indiana. The issue thus made was found for the defend [604] .ant, the Cincinnati, Hamilton and Dayton Railroad Company, and final judgment was rendered upon that finding. That issue can not be retried between the same parties, nor can a second action be maintained upon the same joint contract against either or both" the parties. The question whether any such joint contract to carry the goods from Cincinnati to Chicago was ever made between the parties has become res adjudícala. If either of the companies made a different contract, a contract to carry them from Richmond to Chicago, suit should have been brought upon that contract, and not upon the alleged joint contract, the nonexistence of which had already been judicially determined. Motion overruled,.