and without any variance of any sort between it and the proposal, and, as he failed in this, he was not entitled to the relief which he sought.

The judgment is affirmed.

All of this division concur.

VENDOR AND PURCHASER-OFFER TO SELL-ACCEPTANCE.-The acceptance of an offer to sell real estate, in order to be binding, must be without qualification: Kennedy v. Gramling, 33 S. C. 367; 26 Am. St. Rep. 676.

VENDOR AND PURCHASER-OFFER TO SELL-ACCEPTANCE - PLACE OF PAYMENT.-An acceptance of an offer to sell land, but fixing a different place for the delivery of the deed and payınent of the money than the residence of the respective parties or the place named in the offer, is not an unconditional acceptance so as to bind the seller: Northwestern Iron Co. ▼. Meade, 21 Wis. 474; 94 Am. Dec. 557, and note.

CASES

IN THE

SUPREME COURT

OF

MONTANA.

KLEINSCHMIDT V. BINZEL.

[14 MONTANA, 81.]

RES JUDICATA.-IF A CAUSE OF ACTION IS SUBMITTED UPON DEMURRER and adjudged insufficient by a judgment sustaining such demurrer on the merits the plaintiff and his privies and representatives are thereby barred from asserting the same facts in another action pertaining to the subject, as effectually as though such facts were found from the proofs or expressly admitted during the trial. RES JUDICATA.-A JUDGMENT AGAINST PLAINTIFF UPON DEMURRER does not preclude him from subsequently asserting the same facts accompanied by additional allegations which complete the statement of a cause of action or of defense defectively stated in the former action or proceeding. Nor does the decision against the plaintiff on demurrer, on the ground that the remedy he seeks is not a proper one upon the facts charged, estop him from maintaining another and different action which those facts are adequate to support.

RES JUDICATA JUDGMENT ON THE MERITS.-If the first suit was disposed of for defects in the pleadings or parties, or a misconception of the form of the proceeding, or a want of jurisdiction, or on any ground which did not go to the merits of the action, the judgment will prove no bar in another suit.

RES JUDICATA-BURDEN OF PROOF.-IT MUST CLEARLY APPEAR from the record in a former cause, or by proof by competent evidence consistent therewith, that the matter as to which the rule of res judicata is invoked as a bar was, in fact, necessarily adjudicated in the former action. If there be any uncertainty on this head in the record the whole subject matter of the action will be at large and open to new conten. tions, unless such uncertainty is removed by extrinsic evidence showing the precise point involved and determined. RES JUDICATA-UNCERTAIN GROUNDS OF JUDGMENT.-A JUDGMENT FOR THE DEFENDANT UPON A DEMURRER SPECIFYING that the complaint does not state facts sufficient to constitute a cause of action, and that there is a misjoinder of causes of action and of parties, merely means

that the court finds some one of these causes of demurrer is good, and not that all are found good; and, in the absence of evidence that the judgment was upon the merits, it cannot constitute a bar to a subsequent action based upon the same facts.

EJECTMENT. Defendant denied the allegations of the plaintiff's complaint, and interposed a cross-complaint averring that the defendant on June 5, 1880, was in possession of real property, including the lot sued for in this action, under an agreement entered into between him and Deborah M. Hoyt and her husband, whereby they agreed to convey such property to the defendant; that under such agreement defendant made certain valuable improvements and became financially embarrassed and unable to pay four thousand dollars which was due to Mrs. Hoyt and her husband for the balance of the purchase price; and to provide means with which to make such payment defendant entered into an agreement with Carl Kleinschmidt and William H. Weimer in writing, and of which plaintiff had notice, and in which it was stipulated that the other parties thereto would pay onehalf of the indebtedness due from the defendant. for the undivided one-half interest in the property, and would loan two thousand dollars with which he could pay the balance of the indebtedness, and that the title to such property should be conveyed by Hoyt and wife to Carl Kleinschmidt and Weimer; that to carry out such agreement defendant conveyed the property to them, and thereupon procured a conveyance thereof to them from Hoyt and wife; that at any time within three years after January 5, 1880, if defendant should repay the two thousand dollars he was to have executed to him a conveyance of his undivided one-half of the property, and that he, within the time designated, had tendered such sum and demanded a conveyance. The defendant prayed judgment quieting his title to the undivided one-half of the property. Plaintiff, in reply to the cross-complaint, pleaded that in June, 1883, defendant had commenced an action against Carl Kleinschmidt, Reinhold H. Kleinschmidt, James M. Ryan, Michael Jacobi, William H. Weimer, and Albert Kleinschmidt, alleging the same facts charged in the crosscomplaint herein, and demanding the same relief, and further averring a partnership between himself, Weimer, and Carl Kleinschmidt to carry on business on the property in question, and the violation by them of the partnership agreement, and certain injuries and damages resulting therefrom. This

complaint was demurred to on the ground hereinafter stated in the opinion of the court, and the demurrer was sustained, and a judgment thereon entered. Judgment in the present action was rendered in favor of the plaintiff, on the ground that defendant was precluded by the former judgment from asserting the matters alleged in his cross-bill, and he thereupon appealed.

McConnell, Clayberg & Gunn, for the appellant.

Toole & Wallace, for the respondent.

51 HARWOOD, J. Defendant having alleged in his crosscomplaint those contracts and transactions concerning the land in controversy, shown in the above statement of the case, demanding affirmative relief, plaintiff set up in bar thereof the complaint 52 of defendant in an action which he commenced in 1883; wherein he alleged substantially the same facts, and demanded substantially the same relief, as in his cross-complaint in the present action. To which complaint in the defendant's action, in 1883, demurrer was interposed and sustained, and no further action was taken therein. And the plaintiff here, who was one of the defendants in the action of 1883, avers that he has succeeded to the rights of all the other defendants in that action. Wherefore, he insists that, by said proceedings in the former action, the right, title, and equity claimed by Binzel, defendant here, in and to the property in controversy, has "been adjudicated and determined, by reason whereof he is estopped from asserting his pretended claim to said property." In this position plaintiff was sustained by the ruling of the trial court.

Appellant has made some attempt to point out differences or distinctions between the complaint of Binzel in the action of 1883 and his cross-complaint in the present action. But a careful comparison of these pleadings we think discloses a substantial similarity in the facts alleged and relief sought; with this exception, that the complaint of 1883 went further than the cross-complaint in this action, and contained allegations in reference to an alleged copartnership compact engaged in between Binzel and certain of those defendants, and a violation thereof, and other grievances, for which he demanded a large amount of damages. As to those matters the cross-complaint in the present action is silent. But in so far as it goes in alleging the contracts and facts, on which Binzel claims rights of ownership and possession in and to

the tract of land in controversy, the cross-complaint to this action is substantially the same as his complaint of 1883 on that branch of the case.

The authorities support the proposition urged by respondent that if the alleged cause of action is submitted on the merita by demurrer, admitting the facts alleged, but placing over against them in the judicial scale the proposition of law that the facts pleaded and thus admitted are insufficient to warrant judgment in favor of the pleader; and upon due weighing of the law and the facts those facts are adjudged insufficient by sustaining the demurrer, and this ruling is allowed to stand; those facts thereby pass under the rule of things. adjudicated; 53 and the party against whom such adjudication proceeds, as well as his privies and representatives, are thereby barred from again asserting the same facts in another action pertaining to the subject as effectually as though such facts were found from the proof or admitted ore tenus in the course of the trial. Such appears to be the rule deducible from the authorities, without much conflict: Gould v. Evansville etc. R. R. Co., 91 U. S. 526; Bissell v. Spring Valley, 124 U. S. 225; Griffin v. Seymour, 15 Iowa, 30; 83 Am. Dec. 396; Robinson v. Howard, 5 Cal. 429; Bouchaud v. Dias, 3 Denio, 238; People v. Stephen, 51 How. Pr. 235.

But this rule should always be stated and applied with due regard to some modifying conditions, which it is not permitted to violate. Thus, when the pleader has submitted to the ruling of the court on demurrer, against the sufficiency of the cause of action or defense, as stated, that ruling would not bar him or those in privity with him from again asserting the same facts, accompanied by additional allegations which complete the statement of a good cause of action or defense: Gould v. Evansville etc. R. R. Co., 91 U. S. 526. Nor where an action is commenced to effectuate a certain purpose-such as specific performance or to obtain injunction-and demurrer is interposed and sustained on the ground that the complaint does not show facts sufficient for such action-that is, to invoke such relief-such ruling would be no bar to an action for the proper remedy. It being pointed out in the consideration of such demurrer that, although the plaintiff, for instance, alleges an agreement for the sale and purchase of a piece of real property, and payment of part, or even all, of the purchase price, and the breach of such agreement by the vendor; still, if no other equities were shown, the