was tried to a jury, and resulted in a directed verdict in defendant’s favor; and plaintiffs have appealed from the judgment entered upon the verdict.
The case before us is a sequel to Kupfer et al. v. McConville, 161 N. W. 283. In that action the plaintiffs sought to foreclose a mechanic’s lien filed by them for the construction of the well in controversy here. As stated in the opinion in that case, the well was constructed under a specific contract. And it was there held that the plaintiffs had not performed their contract so as to entitle them to compensation according to its terms.
In this case the defendant pleaded the judgment in the former action as a bar. The judgment roll in the former action, including the findings of the district court, was offered in evidence upon the trial of this case, and the court was requested to take judicial notice of the decision of this court in the former case. And it was contended by the defendant that the facts found in the former case upon the issues there presented cannot be relitigated in this case; and that these facts, together with the undisputed testimony in this case, precludes a recovery on the part of the plaintiffs in this action. The trial court agreed with these contentions, and directed a verdict in favor of the defendant for a dismissal of the action.
On this appeal appellants contend: (1) That the judgment in the action to foreclose the mechanic’s lien is not res judicata in this action; and, (2) that under the rule announced by this court in Horton v. Emerson, 30 N. D. 258, 152 N. W. 529, they are entitled to recover on the quantum meruit for the reasonable value to the owner, not exceeding the contract price, of the labor and materials which they furnished in drilling the well in controversy.
I. There is no question but that a judgment rendered in an action to foreclose a mechanic’s lien is not necessarily a bar to an action brought to recover on the quantum meruit. See Horton v. Emerson, 30 N. D. 258, 152 N. W. 529, and authorities cited therein.
“When the second action between the same parties is upon a different claim or demand or cause of action, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined. This rule holds true whether the
