The only cause of action which the plaintiff below sought to make out on the trial, was the sum of two thousand dollars claimed to be due and owing to him by the defendant below, upon an alleged verbal express contract, set out in the special counts of his declaration. The fact of the making any such contract, in respect to the subject-matter in question, was denied and strongly contested by the defendant. Such alleged contract being verbal, the questions whether the minds of the parties came to an agreement, and what were the terms and conditions of that agreement, would ordinarily be matters of fact to be determined by the jury, under the proper instructions of the court.
The plaintiff below, in order to stop the defendant and conclude him from contesting the existence or validity of said alleged verbal contract, by a verdict and judgment in a former suit between them, gave in evidence a declaration, plea, verdict and judgment in said former suit. Such declaration was in assumpsit, containing one special count, upon a contract in terms similar to, but not the same as,, either of those set out in the special counts in this present suit, averring for breach, the non-payment of five hundred dollars on or before Dec. 15, 1881; also all the common counts in assumpsit; the plea was merely the general issue, the verdict was general, finding the issues for the plaintiff, and assessing his damages at five hundred and thirteen dollars and eighty-three cents; the judgment was the ordinary one upon such a verdict.
*632The general rule applicable to such a case is, that the law casts the onus of establishing an estoppel upon him who invokes it. Freeman on Judgments, 1st ed., § 276, and cases in note 4. In this case, the plaintiff below invoked the estoppel; the burden of establishing it was therefore upon him. Did he establish it? The answer to that question requires an answer to two others, viz.: 1. Were the verdict and judgment in such former suit conclusive evidence of the existence and validity of the alleged verba] contract in question in this present suit, without the aid of extrinsic evidence? 2. If not, then was there extrinsic evidence offered by the plaintiff, of such definiteness as to produce such certainty as the law holds indispensable to an estoppel in such cases?
Looking at the record in such former suit, it is impossible to say that the verdict and judgment there, afford conclusive evidence of the existence and validity of the verbal contract in question, in this present suit, even if we assume that the contract set out in the special count in that suit was substantially the same as that set out in one or the other of the special counts in this present suit, because it does not appear from the record of such former suit, that the existence and validity of such contract was a point or matter actually or necessarily passed upon by the jury in that case. For aught that appears upon the face of the record, they may have rendered their verdict upon the common counts. The Washington Steam Packet Co. v. Sickles, 24 How. (U. S.) 333; Ridgely v. Stilwell, 27 Missouri, 128; Lawrence v. Hunt, 10 Wend. 88.
In order to render the verdict and judgment in the former suit conclusive upon the question of the existence of such verbal contract, without the aid of extrinsic evidence, the record should show with convenient certainty that the precise point was determined, because if it merely shows that one or more of several distinct matters was, or might have been, determined, without indicating which, then the whole will remain at large, and there can be no estoppel. The cases all show thakestoppels arising from judicial proceedings must be certain. Wood v. Jackson, 8 Wend. 36, where these propositions were affirmed by Chancellor: “A verdict can not be *633urged as an estoppel to the litigation of a fact which was not absolutely necessary to the finding of the verdict in the previous suit.” King v. The Inhabitants of Knaptoft, 4 Dow. & Ryl. 469: “And the court will never go into an examination of the jurors in the former cause, to ascertain upon what grounds their verdict was pronounced. Neither will a verdict be considered as an estoppel merely because the testimony in the first suit was sufficient to establish a particular fact.” Burton v. Shaw, 14 Gray, 433-9; Aiken v. Peck, 22 Vermt. 225. In Foster v. Busteed, 100 Mass. 409, the court announces what seems, from the weight of authority, to be the true rule: “To be a bar to future proceedings, it must appear that the former judgment neeessarih/ involved the determination of the same fact, to prove or disprove which it is offered in evidence. It is not enough that the question was in issue in the former suit. It must also appear to be precisely determined.”
. It is clear from the above authorities, that the record in the former suit, unaided by extrinsic evidence, was insufficient to prove the fact of the existence and validity of such verbal contract, and operate as an estoppel upon the defendant below. And we are of opinion that the parol or extrinsic evidence introduced was not sufficient to help out such record. It was lacking in the definiteness and certainty which the law holds indispensable to an estoppel by judicial proceedings. There is nothing contained in it which shows, with any degree of certainty, that the precise point or matter was actually or necessarily determined bjr the verdict in that case.
By the third instruction for plaintiff below, the jury were instructed in these words: “The first special counts in the declaration in this suit, and in the former suit in this court between these parties, are substantially on the same contract of sale and purchase. The verdict and judgment in the former suit are conclusive between these parties upon the issues joined and tried in that case.”
By the first of these propositions, the court assumes to pass upon the question of the identity of the alleged contracts in the two suits. Taking the evidence of the plaintiff below to *634be true, he and the defendant made two verbal contracts in reference to the subject-matter which were substantially different in terms. It seems to us that the question of the identity of contracts was one of fact to be determined by the jury. 1 Greenl. on Ev., Redf’s Ed., § 532, and cases in note 2.
But taking both propositions together, they amount to a direction by the court, that the verdict and judgment in the former suit were f&r se conclusive as to the existence of the contract, set out in the special count in the former suit; that the contract set out in the present suit was the same, and thus leaving the jury to draw the inference that the contract in the present suit was thereby conclusively established. The authorities above cited clearly show, that under the record in the former suit, the verdict and judgment therein can not, from such record, be regarded as conclusive of the existence and validity of the contract set out in the special count in that suit, merely from the issues joined and tried in that case, because such issues involved other and distinct matters. They show that it was not sufficient that the fact of the existence of such contract was in issue, or even that evidence was given in support of it in such former suit; but that the burden was upon the plaintiff below, who invoked the estoppel, to show with convenient certainty that such fact was actually or necessarily determined by the verdict. That instruction was improper, misleading and should not have- been given.
By the eighth instruction for plaintiff below, the jury were told that “ the real issue in this case is, whether any contract was made between these parties for the sale, on the one hand, and for the purchase, on the other, of the property, assets and business of O. H. Beckwith & Go.” That direction was so manifestly erroneous and misleading that we shall waste no time in analyzing it. For the errors pointed out, the judgment of the court below should be reversed, and the cause remanded.
Judgment reversed.