tween Night Hawk Mining Co. claims and all his holdings in the Night Hawk Mining Comp. in shares the payment to be two thousand on or before November first, 1902, and the balance of three thousand dollars on or before February first, 1907. A. M. WEHE.

"Witness: A. GEORGE WEHE."

Upon the above written agreement the plaintiff, in the year 1903, brought an action against the defendant, and alleged that at the time the agreement was made the plaintiff owned fifty-six thousand five hundred and sixty-six shares of the capital stock of the defendant company; that said Wehe made the contract on behalf of the defendant; that the defendant had paid $1,000 thereon, and judgment for $4,000 was asked. The second and modified promise to pay, as alleged in the present action, was by way of letter written by the secretary 200 of the defendant company, at Milwaukee, Wisconsin, and directed to the plaintiff at Night Hawk, Washington. The plaintiff had this letter in his possession at the time he brought the former suit. That suit came on for trial in 1905, and objection was made to the admission of any testimony, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the objection and rendered judgment against the plaintiff. No appeal was taken from that judgment, and it was in full force and effect when the present action was brought.

In the present action the defendant interposed three defenses: 1. A general denial of liability; 2. That the alleged contract of July 9, 1902, was entered into between the plaintiff and said Wehe on account of Wehe himself, and that he had no authority to make the same on behalf of the defendant; 3. The judgment in said former action was pleaded as res judicata. The trial was by the court without a jury, and the court found the necessary facts to establish all of these defenses. Judgment was rendered that the plaintiff shall take nothing by the action, and the plaintiff has appealed.

The assignments of error are based upon the court's findings and conclusions. It is contended that the defense of res judicata was not established. The evidence certainly shows that the parties to the former action were the same as in the present one, the appellant being plaintiff and the respondent defendant in both cases. The cause of action in each case was the same, viz., the recovery of the purchase price of certain mining claims, the only difference between the two actions being that in the present action the demand is for the purchase price of the mining claims alone, while in

the former one it was for the purchase price of the mining claims and also for that of fifty-six thousand five hundred and sixty-six shares of the capital stock of the respondent company, claimed to have been held by appellant and sold by him to the respondent company that issued the stock. Both complaints refer to the contract of July 9, 1902, but the complaint 201 in the present action omits to allege that the consideration for the demand includes the sale of the fifty-six thousand five hundred and sixty-six shares of capital stock as was alleged in the former action.

The court held, in the former action, that the contract as alleged was illegal, for the reason that it undertook to obligate the respondent as a corporation to traffic in its own stock. Appellant sought in this action to avoid the force of the former holding by omitting any demand on account of the shares of stock, and limited his demand to $3,000 for the mining claims alone. The written contract was, however, an indivisible one. No part of the consideration of $5,000 mentioned therein was apportioned to the mining claims and no part to the mining stock. But appellant sets up in his present complaint one or two letters written to him by the secretary of the respondent company as the alleged basis of the present action for $3,000, and as distinguishing it from the former cause of action. He had those letters in his possession when he brought the former action. If the rule that what might have been adjudicated in a former action should be treated as adjudicated were applied, appellant would now be precluded by that rule from asserting any new element introduced by the letters. But without deciding whether that rule should apply here or not under the circumstances, it is nevertheless true that the letters do not attempt to segregate a part of the original contract price as applying to mining claims and a part to capital stock. What was said in the letters related to the subject matter of the original written contract, and the complaint in the present action refers to that contract as the basis of sale and the cause of action. The letters, in other words, do not constitute an independent basis for a cause of action. But they grow out of, and are dependent upon, the original contract, which was an indivisible one, and provided for the sale and purchase of both mining claims and capital stock. The cause of action being an indivisible one, and a suit having been once brought thereon in which 202 judgment went against appellant, the contract cannot now be divided and a subsequent suit maintained on a part

Am. St. Rep., Vol. 126-55

of it: 24 Am. & Eng. Ency. of Law, 2d ed., p. 786; 23 Cyc. 1174; Kline v. Stein, 46 Wash. 546, 123 Am. St. Rep. 940, 90 Pac. 1041; Collins v. Gleason, 47 Wash. 62, 125 Am. St. Rep. 891, 91 Pac. 566.

All the conditions necessary to render the former judgment res judicata are present. There is identity of the thing sued for, of the cause of action, and of persons and parties. But it is conceded by appellant that, since the former judgment was rendered on objection to the introduction of any evidence, it was not, therefore, a judgment on the merits which can be interposed as res judicata. The objection was upon the ground that the complaint did not state a cause of action, and when it was sustained and judgment entered upon the ruling, it was in the nature of a judgment on demurrer to the complaint. A final judgment rendered on demurrer which goes to the grounds of recovery is a judgment on the merits, and is res judicata: 24 Am. & Eng. Ency. of Law, 2d ed., p. 799; 23 Cyc. 1232; Plant v. Carpenter, 19 Wash. 621, 53 Pac. 1107; Gould v. Evansville etc. R. Co., 91 U. S. 526, 23 L. ed. 416; Northern Pac. R. Co. v. Slaght, 205 U. S. 122, 27 Sup. Ct. Rep. 442, 51 L. ed. 738.

It follows that this action is barred by the former judg ment, and that being true, it is unnecessary for us to discuss in detail other findings. We may say, however, that the evidence in the record in support of the defense on the merits is such that we think the court's findings thereon are supported, and should not be disturbed.

The judgment is affirmed.

Rudkin, Dunbar, Root, Crow, Fullerton and Mount, JJ.,

concur.

The Rule Against Splitting Causes of Action does not obtain where there is one contract, but the performance is several. Where one who has constructed a railroad under a contract to receive money, also stock and bonds placed with a trust company, sues the railroad company, joining the trust company as defendant, but dismissing it at trial, and is adjudged entitled to a lien, the money, and a certain amount of stock, no money judgment being rendered for the stock because having no pecuniary value, the judgment does not bar him from suing in equity to compel the trust company to deliver the certificates of stock and the railroad company to make a transfer of the shares on its books: Baumhoff v. St. Louis etc. R. R. Co., 205 Mo. 248, 120 Am. St. Rep. 745. If an officer has disposed of a portion of personal property alleged to have been wrongfully seized by him under a writ of attachment, the owner may maintain an action in trover and conversion for the goods thus disposed of, and an action in replevin for the remainder: Gehlert v. Quinn, 35 Mont. 451, 119 Am. St. Rep. 864. The giving of a promissory note for a part of a

sum due for materials sold and delivered, and the subsequent taking of judgment for the amount of such note, do not, where there is evidence that the note was taken in payment of the amount, preclude the plaintiff from afterward maintaining an action for the balance due. The cause of action accruing at the maturity of the note is not the same as that resting on the balance of the account, and recovery therefor may be had without splitting the cause of action: Ebersole v. Daniel, 146 Ala. 506, 119 Am. St. Rep. 52. If by the same act of trespass adverse possession is taken of land, but one action can be maintained to recover such possession, and if an action is brought and judgment rendered for part only of the tract, no subsequent action can be maintained for the balance, though it is claimed that the bringing of the action for a part only was due to accident and mistake: Kline v. Stein, 46 Wash. 546, 123 Am. St. Rep. 940.

FISHER v. NORTHERN PACIFIC RAILWAY COMPANY.

[49 Wash. 258, 94 Pac. 1073.]

CARRIERS, Liability of as Such, When has not Terminated.— If goods shipped over a railway reach their destination, but the consignee, on applying for them, is informed that the waybills are not made out and will not be made out on that day, this is equivalent to notifying him that the goods cannot then be delivered, and the railway company remains liable as a carrier for the subsequent loss of the property by fire without negligence. (p. 868.)

B. S. Grosscup and Ira P. Englehart, for the appellant.

Snyder & Luse, for the respondent.

259 MOUNT, J. This case was tried to the court without a jury. Findings were made in favor of the plaintiff, and a judgment was entered against the defendant for three hundred and sixty-eight dollars and nineteen cents. The defendant appeals.

The facts are as follows: The respondent was doing business in North Yakima, in this state. In May, 1906, three boxes of merchandise, of the value of three hundred and sixty-eight dollars and nineteen cents, were shipped from Portland, Oregon, over the line of the appellant, to the respondent at North Yakima. The goods arrived at North Yakima about noon on May 5, 1906. About the time the goods arrived, the plaintiff called at the depot for them. He was informed that the goods were probably in the shipment of that day, but that the waybills were not made out and would not be made out on that day. Plaintiff did not return for the goods on that day. During the afternoon the goods were unloaded from the car and placed in the warehouse of

the railway company. At about 11 o'clock of that night a fire started in the warehouse known as Coffin Bros.' warehouse, about one hundred feet from the freight-house of the railway company where the goods in question were stored. The North Yakima city fire department was unable to control the fire, and it spread to and consumed the warehouse of the railway company, and the goods stored therein were lost. It is conceded that there was no negligence on the part of the railway company. Upon these facts the appellant argues that it is liable only as a warehouseman and not as a carrier. This presents the only question in the case.

260

Many, authorities hold that, where goods are shipped by rail and arrive at their destination, and are there unloaded into a warehouse and held ready for delivery, the company's liability ceases as a common carrier, and it is thereafter liable as a warehouseman only: See note to Denver etc. R. Co. v. Peterson, 97 Am. St. Rep. 76, 90 (30 Colo. 77, 69 Pac. 578), where many of the cases cited by the appellant are mentioned. But the rule is stated in note "e," page 91 of the same volume, as follows: "Merely placing the goods in storage at their destination does not, in our opinion, reduce the carrier's liability to that of a warehouseman. Its liability as carrier continues, according to the sounder reason and the weight of authority, until at least such time as the consignee has had a reasonable opportunity to inspect the goods and take them away in the usual course of business." Several cases are then cited which support this rule. The author continues: "This doctrine applies both to carriers by rail and to carriers by water. But the consignee must act with reasonable expedition. If he fails within a reasonable time and after a fair opportunity to take charge of the goods, the carrier's liability becomes that of a warehouseman only."

And many cases are cited to support this rule. We think the rule as quoted above under note "e" is the rule which should apply in this case, It was substantially followed by us in Normile v. Northern Pac. R. Co., 36 Wash. 21, 77 Pac. 1087, 67 L. R. A. 271. When the respondent called for his goods he was informed, in substance, that they could not be delivered to him until the next day. They were destroyed that night. He therefore had no opportunity to obtain the goods or to take them away before they were destroyed. Under these facts and the rule above stated, the liability of the appellant was that of a carrier and not of a warehouseman. The judgment must therefore be affirmed.

Hadley, C. J., Crow, Fullerton and Root, JJ., concur.