#### THEODORE WEISBERGER v. THE UNITED STATES.

[No. 32743.

Decided December 2, 1918.]

*On the Proofs.*

*Contract; res judicata; estoppel.*Parties and their privies are concluded by a judgment of a court of competent jurisdiction upon every material issue clearly presented, or that properly might have been presented, by the pleadings, tried by the court and judgment rendered thereon.

*California Bridge*& *Con. Co., 50 C. Cls., 40, followed.*

*The Reporter's*statement of the case:

*Messrs. Nathan G. Richards*and *William B. King*for the ■ plaintiff. *Mr. George R. Shields*and *King do King*were on the briefs.

*Mr. Eugene W. Bun',*with whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants. *Messrs. William R. Norris*and *Will R. King*were on the briefs.

The primary consideration is the applicability of the doctrine of *res judicata.*The United States brought suit in the United States District Court for the Eastern District of Washington against the present claimant and the surety company for the excess cost of the construction work incurred by the United States in completing the contract work. A general verdict was rendered for the defendants, and the United States attorney moved for a judgment *non obstante veredicto.*The motion was overruled and judgment entered. Upon review by the Circuit Court of Ap*2peals. Ninth Circuit, the action of the district court was affirmed, 206 Fed., 641. In the meantime, the case of *New York Life Insurance Go-,*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 Stoles*v. *Weisberger*does not constitute a prior determination in claimant’s favor of any defense now interposed herein. If the defendant prevail in either Anew, 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 folloAving 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 Avhich 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 laAv upon any ground whatever.

*“*But Avhere the second action between the same parties 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 AA'as 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 conclusiA'e 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 *3as 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 Coimty,*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 *(h)*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 *4was 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 l’est 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 requii’ement is harshly to rob him of the fruits of his successful defense *5of 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 Go.*v. *Sickles,*5 Wall., 580; *Russell*v. Place, 94 U. S., 606; *De Bollar*v. *Hanscome,*158 U. S., 216; *Bell*v. *Merrifield,*109 N. Y., 202; *Hooker*v. *Hubbard,*102 Mass., 239; *Lewis*v. *O. N. (& P. Go.,*125 N. Y., 341; *Marble Savings Bank*v. *Board of Coimty 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 *6finally 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 Torle Life Ins. Go.,*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. *Band,*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 Weis-berger, 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, *7Tieton l’eclamation project, Washington. The work consisted in manufacturing metal reinforced cement shapes for use as a lining for the main canal of the Tieton project, and of laying the shapes so as to form a continuous concrete lined canaJ.

The Secretary of the Interior, on October 23, 1907, extended the time for the completion of the work to October 15, 1908, because of delays, for which the plaintiff was not responsible.

The work was carried on through the working season of 1907 by the contractor in a satisfactory manner, until the work was ordered stopped by the Government officers because of unfavorable weather conditions. The work provided for in the specifications was of a novel and untried character.

On February 1, 1908, the Secretary of the Interior suspended the contract. Before the contract was suspended by the Secretary of the Interior the plaintiff made repeated applications to the officers of the Government for changes in the specifications in order that the performance of the contract might be made possible. These applications were either refused or not acted upon. Immediately after the order of suspension the officers of the Government, authorized by the Secretary of the Interior, in the absence of the plaintiff, and without his assent, took possession of all plant, machinery, and equipment, which had been purchased by the plaintiff for use on the work, and employed the same in the completion of the contract work or other work being done by the United States.

On May 15,1908, the Government began construction work on the canal and completed it on October 15, 1909.

Following the completion of the work the United States brought suit in the Circuit Court of the United States for the Eastern District of Washington against the plaintiff and the surety on his bond to recover $51,095.05 alleged to have been expended in excess of the contract price in completion of the contract work undertaken by the plaintiff, and on a trial of the issues involved in said suit judgment was rendered in favor of the defendant and against the United States and the suit was dismissed. An appeal was taken by *8the United States to the Circuit Court of Appeals and the judgment of the trial court was affirmed.

The defenses set up and pleaded by the defendant in said suit were: 1. That the work done by the Government after the suspension of the contract was not the work specified in the contract, but was substantially different work. 2. That the contract was impossible of performance. 3. That the Secretary of the Interior was guilty of fraud in suspending the contract, or that he committed such a gross mistake in suspending it that fraud on his part was necessarily to be implied. Evidence produced before the court and jury tended to show that all or any one of these contentions were true.

The judge in his charge to the jury stated that there were two issues for their consideration: 1. Was the contract in controversy possible of performance at the time it was entered into? 2. Was the Secretary of the Interior guilty of fraud, or did he commit such a gross mistake that fraud on his part would be necessarily implied? It will be observed that the judge did not charge the jury as to the work done by the plaintiff subsequent to the suspension of the contract being different from the work specified in the contract. It is difficult to understand why the learned judge should have omitted this question in his charge to the jury. Evidence was submitted at the trial to sustain this defense, and the Circuit Court of Appeals in its determination of the case, based its decision mainly upon this question. *United States*v. Weisberger, 206 Fed., 641, 645.

Upon the issue so made up the jury found the following verdict, “ We, the jury in the above-entitled cause, find for the defendants.” The court denied the motion made by the Government for judgment notwithstanding the verdict of the jury.

The first question for this court to determine -is the question of *res judicata.*Have the questions of the impossibility of the performance of the contract, the fraud of the Secretary of the Interior, and the change made in the work by the defendants after they took over the work been determined by the suit in the Circuit Court of the United States *9for the Eastern District of Washington, wherein this plaintiff was defendant and the United States was plaintiff? If they have been determined, and are *res judicata,*then it only remains for this court to ascertain the damages suffered by the plaintiff.

The general rule has been stated in this court to be that parties and privies are concluded by a judgment of a court of competent jurisdiction upon every material issue clearly presented by the pleadings, tried by the court, and judgment rendered thereon. *Langston’s*case, 26 C. Cls., 256; *Braden’s case,*12 C. Cls., 164. In *California Bridge and Construction Co.*v. *United States.*50 C. Cls., 40-50, the rule 3s thus stated: *“*The general rule is that when an action is brought in a court of competent jurisdiction, a judgment rendered thereon is conclusive in a subsequent action between the same parties or their privies upon the same subject matter in the same court or another court of concurrent jurisdiction.” And the rule of former adjudication does not apply alone to questions actually adjudicated, but it applies equally to all questions in the case which properly might have been litigated or pleaded. *Northern Pac. R. Co.*v. Slaght, 205 U. S., 122, 131.

The parties in this suit are the same parties who were parties to the suit in Washington; a judgment was rendered in that court upon the same subject which the defendants here ask us to adjudicate. So far as this court is concerned the issue which the defendants are making in this case was decided in the case in Washington, and the defendants are estopped by the result of that case and can not now reopen what was closed by the legal effect of that proceeding.

After the contract was suspended the defendants took possession of a warehouse belonging to the plaintiff and occupied the" same for thirty-nine months; the rental value of this warehouse was $100 per month. At the time of the suspension of the contract the defendants took from the plaintiff mess stores worth $754.60. There was due the plaintiff by the defendants at the time of the suspension of the contract the sum of $4,552.37 unpaid earnings, and the value of the plant and equipment taken from the plaintiff by the defendants was $69,772.81; a part of said plant worth *10$0,980.32 was returned to the plaintiff, and thus the defendants still owe the plaintiff the sum of $62,792.49 on account of the plant and equipment. These several sums make in all the sum of $71,999.46 which the court ascertains to be the amount of damages due by the defendants to the plaintiff.

The plaintiff also claims as a part of his damages the sum of $2,437.23, which is interest on money borrowed by the plaintiff prior to the suspension of the contract, which money so borrowed he used in carrying out his contract. We do not think this item of the claim should be allowed. It was not an expenditure under the contract. The court is prohibited by statute from allowing interest as damages. *(Revised Statutes,*sec. 1091.) This has been repeatedly held by this court. *Ely*v. *United*States, 19 C. Cls., 658; *N. Y. Central & Hudson River R. R. Co. v. United States,*24 C. Cls., 22. It is not perceived how the interest here claimed as damages differs from any other interest which might be so claimed. A careful examination of the case cited in plaintiff’s brief, *Kellogg Bridge Co.*v. *United States,*15 C. Cls., 206, does not bear out the contention that such a claim was allowed in that case.

Judgment will accordingly be rendered in favor of the plaintiff for the sum of $71,999.46. And it is so ordered.

Judge Downey, Judge Barney, Judge Booth, and Chief Justice Campbell concur.