Page:North Dakota Reports (vol. 48).pdf/636

 judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se. In all cases it should appear that the first judgment determined the actual question at issue between the parties, and that the precise question was raised and determined in the former suit. On the other hand, it is equally well settled that a fact which has been directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties in the same or any other court; and that where some controlling fact or question material to the determination of both actions has been determined in a former suit, and the same fact or question is again at issue between the same parties, its adjudication in the first will if properly presented be conclusive of the same question in the latter suit, without regard to whether the cause of action is the same or not, or whether the second suit involves the same or a different subject-matter, or whether or not it is in the same form of proceeding., In such cases it is also immaterial that the two actions were based on different grounds, or tried on different theories, or are instituted for different purposes, and seek different relief. A matter, whether consisting of one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction, must, in any subsequent litigation between the same parties, where the same question or questions arise, be deemed to have been finally and conclusively settled, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication.” 15 R.C. L. pp. 973-975.

These principles were recognized in Horton v. Emerson, supra. In the opinion in that case it was pointed out that the trial judge, in deciding the action to foreclose a mechanic’s lien, had expressly refused to find bad faith and intentional and wilfulwillful [sic] departure from the terms of the contract by the contractor; that he had merely held “that no recovery could be had by plaintiffs on the contract, and that he had “studiously avoided making any finding or conclusion which would in the least hamper or interfere with plaintiff’s right to recover upon the quantum meruit.” 30 N. D. 264, 152 N. W. 531. There can, we think, be no doubt but that the findings of fact made in the former action are binding upon the parties in this case. In that case there was an issue as to the terms of the contract between the parties. There was also an issue as to what plaintiffs had done; that is, as to what kind of a well they had drilled. In that case the plaintiffs claimed that they had in fact