From the circuit court of Adams county.

Hon. Moyse H. Wilkinson, Judge.

Miller, tlie appellant, was plaintiff in the court below; Bulkley, the appellee, was defendant there. From a judgment in defendant’s favor the plaintiff appealed to the supreme court.

In August, 1902, plaintiff ordered an automobile from defendant, the price of which was $425, of which $100 was paid. After some correspondence between the parties — Miller wanting to test the machine in a certain way before paying for it, and Bulkley declining to allow the test made as requested — Miller, claiming that he had declined to accept the machine, brought suit in a justice of the peace’s court against Bulkley to recover the $100 paid, where he recovered, and Bulkley appealed to the circuit court. Bulkley also brought suit against Miller to recover $325, the balance of the purchase money. Both cases were by consent tried together, and resulted in a verdict and judgment for Bulkley for the balance of the purchase money demanded. After the judgment in the other cases, Miller brought this suit against Bulkley to recover the money paid for the automobile, alleging a breach of warranty. Bulkley filed, among other pleas, a plea of res adjudicata. To this plea plaintiff filed a replication as follows: “And the said plaintiff, to the said plea of tbe said defendant by him thirdly pleaded, saith precludi non, etc., because the said plaintiff saith that the said several promises and undertakings in the plaintiff’s said declaration mentioned were not, nor was any or either of them, any of or any one of them, the same identical promises or undertakings as those, or any of those, in the said third plea mentioned, and for and in respect whereof the said supposed judgment in the said plea mentioned was recovered, in manner and form as the said defendant hath above in his said plea alleged. And this the said plaintiff prays may be inquired of by the country.” Defendant demurred to this replication, and the court sustained the demurrer, and plaintiff then filed another replication. The issue thus joined on the plea was tried by the court, resulting in the plea of res adjudicaba being sustained.

The circuit court erred in rendering the order sustaining the defendant’s demurrer to the plaintiff’s replication to the defendant’s third plea to the declaration, being a plea of res adjudicaba.

That a judgment is of record in the former suit between Miller and Bulkley, and that said judgment is in favor of Bulkley, is not denied or attempted to be denied by Miller; but by his replication, which is demurred to, Miller intends to deny, and does deny, that a judgment for “the same cause of action” has ever been rendered against him. By this replication a question of fact for the jury is raised. The right to present evidence and testimony before the jury in support of the same is claimed.

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