Page:Federal Reporter, 1st Series, Volume 9.djvu/851

886 ���FBDEBAL BEPOBTEB. ���Buch a breach of contract on its part as must legally precluda it from any recovery in the other action. The sole ultimate question in each case is, which party was in fault for the vessers return without a cargo ? Thus, althongh the causes of action in the two suits are differ- ent, the fundamental question at issue in both is the same. In each suit each party alleges the other to be in fault in the same identical particulars which he sets up in the other suit ; and in each the breach of contract alleged is not a partial breach merely, from which some incidental claim arises, but an entire failure of performance, such as necessarily excludes whichever party is guilty of such a failure from all claim under the contract. �The claim for damages which the libellants present by this suit might have been made in the action in the state court, under sections 500-502 of the New York Code, as a "counter-elaim" growing out of the same transaction, without any substantial change in the answer which they actually interpose in that action. They did not make any such counter-claim for damages in that action, but they set up, as a defence to the plaintiff's demand, the same identical matters upon which their present claim is founded. The issues, therefore, in both actions are substantially the same. The issue has beeh tried upon the merits in the action in the state court, a verdict recorded thereon in favor of the respondents, and a judgment entered upon the verdict. It is not claimed that that issue, and all the matters involved in it, were not fully and fairly presented and tried in that action. Such a judgment properly pleaded is, by all the authorities, held to be an estoppel against all further controversy in any other action between the same parties upon the same subject- matter, whether the particular cause of action be the same or not. �"A fact which has been directly tried and decided by a court of competent jurisdiction cannot be again contested between the same parties in the same ot any other court." Hopkins v. Lee, 6 Wheat. 109. �Its operation is not a's a former judgment reeovered upon the same cause of action, for the cause of action is not the same ; but as an estoppel of record by an adjudication of the same identical matter once heard and determined between the parties. Russell v. Place, 94 U. S. 606; Behit v. Morgan, 7 Wall. 619; Aurora City v. West, Id. 82; Gardner v. Buckhee, 3 Cow. 120; Bouchard v. Dias, 1 Coms. 71 ; Hopkins v. Lee, 6 Wheat. 109 ; Bigelow, Estoppel, (2d Ed.) 36, 45 ; Flanagin v. Thompson, 9 Fbd. Ebp. 177. �This case does not present the question which has given rise to conflicting decisions in the different state courts, viz., whether the ��� �