1922 Judgment. DYSART, J. "it is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. * * * * the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them * * has been, on such issue joined, solemnly found against them." "According to the practice of every Court, after a matter has once been put in issue and tried, and there has been a finding or verdict upon that issue, and thereupon a judgment, such finding and judgment are conclusive between the same parties on that issue. In all courts it would be treated as an estoppel," [quoting from Finney d. Finney, L.R. 1 P. 484, 37 L.J. Mat. 43.] So also in 23 Cyc., p. 1288: A judgment rendered by a court having jurisdiction of the parties and subject matter, whether correct or not, is conclusive and indisputable evidence as to all the points or questions in issue in the suit and actually adjudicated therein, when the same come again into controversy between the same parties or their privies in proceedings upon the same or a different cause of action, in so far as it settles and determines questions of fact as distinguished from abstract propositions of law. And at p. 1290: The estoppel of a judgment cannot be extended beyond the particular facts on which it was based; it determines only such points or questions as are sufficient to sustain the legal conclusion that judgment must be given for one or other of the parties in the particular form and amount in which it was rendered, not additional matters, unnecessary to the decision of the case, although they may come within the scope of the pleadings, unless they were actually litigated and passed upon. Also at p. 1300: The true test is identity of issues. If a particular point or question is in issue in the second action, and the judgment will depend upon its determination, a former judgment between the same parties will be final and conclusive in the second if that same point or question was in issue and adjudicated in the first suit, otherwise not. In Taylor on Evidence, 11th ed., sec. 1684, it is laid down that * A judgment inter partes is * admissible for or against parties or privies, where the same subject-matter is a second time in controversy between the same parties * * In no case will it be regarded as quite conclusive of the rights in dispute, unless it be pleaded as matter of estoppel. From the foregoing authorities and from numberless decisions, it is clear that the principle of res judicata has its roots stuck deep in the necessity of having some end and finality to litigation over the same matters between the same parties; that the principle has its sanction not in superficial or technical considerations, but in the inherent jurisdiction of Courts of law; that it is of wide and general application, and that it applies notwithstanding that the second action is different in form from the first, or that the plaintiff in the second action is virtually or actually a defendant in the first. So long as any point of fact or law was put in issue-whether pleaded or not—and was tried in the former action in which the present parties were on opposing sides, it matters not that the decision. on those points may not be sound or was reached on insufficient or false evidence, or on erroneous views of the law, or because of some matter omitted which might have been supplied or has since been discovered-so long as that decision or judgment stands on the records unattacked or unappealed from, it stands with all that is necessarily involved and included in it—as res judicata as matter finally and conclusively settled between these parties and their privies. Applying the foregoing principles to the case in hand, we come irresistibly to the conclusion that the earlier action between these parties settled not only the question of the freight charges but that it also settled every point of fact or law which necessarily entered into consideration of the Court in determining exactly what were the terms of the contract, what were the particulars of the breach, and how that contract and breach affected the defendant's rights to recover freight charges. The freight was the main issue but in attempting to establish a right to freight, the defendant necessarily had to show the terms of a contract entitling it to freight. The plaintiff in resisting the claim brought out other terms which imposed on the defendant a special duty of taking care of the fish and then produced evidence to show that the defendant and its agent had negligently violated that duty. All the points then of the contract and of the breach, together with necessary inferences of fact and conclusions of law, that are involved in that earlier judgment must be res judicata. 1922 Judgment. 1922 For the purpose of making a careful comparison between Judgment. the issues raised in this action, and DYSART, J. the matters of fact and matters of law decided and adjudicated in the said former action, I have analyzed and summarized those "matters" as I find them in said "judgment and reasons therefor." In doing so I have applied in every instance the tests of identity and of necessity, and am of the opinion that the summary which follows sets forth those and only those "matters" which were necessarily decided in the earlier action, and are among those raised by the pleadings in this: (1) On April 29, 1918, the plaintiff loaded into a refrigerator car in Manitoba, 253 boxes of fish consigned to the Raney Fish Company at Cleveland, Ohio, and on the same day the defendant accepted said car and agreed to carry the fish to their destination; (2) At the time of the delivery and acceptance, the fish were frozen and in good order and condition, and the bunkers. in the ends of the said car were properly filled with crushed ice and fifteen per cent salt; (3) The terms and conditions on which the fish were to be carried were specified in a bill of lading or shipping order issued at the time to the plaintiff; those included an order imposed by the plaintiff on the defendant to "re-charge with ice and fifteen per cent salt in transit when necessary"; (4) It was found that the recharging in transit became necessary every twenty-four hours; (5) The car was transported over the defendant company's railway lines to Chicago, thence over the Nickle Plate line to Cleveland, Ohio, reaching there on May 7, 1918; (6) Notice of the arrival of the fish was on the day of their arrival given to the consignee, as contemplated by the terms of the bill of lading. The effect of the giving of this notice was to terminate at the end of forty-eight hours thereafter 1922 the defendant's liability as insurer, that is, it set a time, fortyeight hours thereafter for the termination of the period of Judgment. transit. That termination would occur sometime on May 9; (7) The fish were inspected on the date of arrival and were found to be "in the same condition as when shipped"; (8) The bunkers on the car were not recharged either on May 7, 8, or 9, nor were any other steps taken to insure the preservation of the fish; (9) On May 11 the fish were found on inspection to be soft and slimy. This process of deterioration had on that day so far advanced that it must have begun before May 9, that is before the period of transit and the defendant's liability as insurer had ceased; (10) The omission to recharge the car with ice and fifteen per cent salt was negligence, and was the cause of the loss of the fish, and constituted a breach of duty for which the defendant or its agent was responsible to the plaintiff; (11) The Nickle Plate Railway was by the terms of the bill of lading or shipping order the agent of the defendant and for its negligent breach of duty the defendant was responsible to the plaintiff. In the foregoing summary there is not in my opinion a single finding of fact or conclusion of law, but what is necessary to support the judgment of the learned Chief Justice, not one that may be withdrawn without removing a necessary pillar on which that judgment rests. The terms of the contract; the performance of it; the negligent breach of those terms in that performance, constituting the performance an imperfect one, the legal responsibility of the defendant to the plaintiff for the consequences of that negligent breach so far as consequences extended to the freight charges-these were all necessarily passed upon as a premise for the final conclusion. of the court that * the defendant's contract was to carry the goods safely, and not having done so, it has not fulfilled the contract on its part * * DYSART, J. 1922 DYSART, J. What now are the issues raised in this action, and how far Judgment. do they coincide with "matters" set forth in our summary? The first six paragraphs of the statement of claim show the delivery of the same shipment of fish, by the same plaintiff to the same defendant, for transportation to the same consignee, on the same terms, including the special order for recharging the bunkers with ice when necessary; the same necessity of recharging once in every twenty-four hours; the same proper packing and good frozen condition of the fish; the same condition for terminating by notice the period of transit, and liability as insurer; the same failure to recharge; the same negligent breach of contract; and the same loss or destruction of the fish attributed to the same cause. These allegations of fact are all framed with an eye to keep them within the language of the judgment, and in fact they are nothing but a summaryin language different from mine-but still a summary of the findings and conclusions embraced in that judgment. Par. 7 pleads that the matters and facts alleged in the first six paragraphs were all adjudicated in the said earlier action, it distinctly pleads res judicata, which by its reply to the statement of defence it supplements by setting forth in full the particulars of the said judgment. By par. 8 the plaintiff introduces an alternative cause of action based upon the defendant's liability as warehouseman. Par. 9 gives details of the quantity and value of the said fish, and their containers, while par. 10 asks for damages $3,762,57, the "value of said fish and boxes.” The statement of defence ignores completely the plaintiff's allegations of res judicata. It devotes much attention to the alleged facts set out in said pars. 2 to 6, not by either denying that they were decided in the earlier action, or if decided not directly decided, or not necessarily decided. No, it passes this phase over in silence, and directs its attack at the existence of the facts themselves, and to this purpose it levels a veritable broadside of denial—general, specific and contingent. By failing to deny the allegations of par. 7 the defendant must be taken to admit them, and by reference pars. 2 to 6 also. Having |