Did tbe judgment of Lyon, J., rendered at tbe August Term, 1927, of Franklin Superior Court, constitute an estoppel upon tbe defendant in this action?
An examination of the Lyon judgment, set out in tbe record, discloses that tbe judge found from tbe pleadings that tbe plaintiff in tbe action was indebted to N. B. Finch in tbe sum of $4,011,73. Tbe judge further found from tbe pleadings that “all material facts and allegations of tbe complaint, being fully denied by tbe defendant in bis answer, and tbe court being of tbe opinion, and so finding from tbe pleadings that tbe plaintiff is not entitled to tbe relief demanded in bis petition and complaint, it is, therefore, by tbe court ordered, considered and adjudged that tbe petition and complaint of tbe plaintiff be, and the same is hereby denied.”
*612It will be observed that the complaint alleged that the plaintiff was a colored man witb practically no education, and entirely unable to keep books or accounts, and that be relied upon the correctness of the account as kept by the defendant. Plaintiff further alleged that a mistake bad been made in the account, and that although be bad given a note to the defendant and secured the same by a mortgage upon bis land, that by reason of the mistake be was not indebted to the defendant at all.
Clearly, the complaint alleged a cause of action. Tbe allegations of the complaint were denied in the answer. Tbe pleadings, therefore, raised an issue of fact for the jury. Tbe trial judge ordered “tbat the petition and complaint of the plaintiff be, and the same is hereby denied.” While this language is of doubtful import, apparently the judgment, denying the complaint, would be equivalent to a. dismissal of the 'action. As the pleadings raised issues of fact and the jury, trial was riot waived, the judge was without power to declare, upon the pleadings alone, “tbat there has been an account stated between the parties.” Tbe principle of law applicable is stated in Grimes v. Andrews, 170 N. C., 515, 87 S. E., 341: “And when it appears from the record that the court never determined the merits of the controversy nor rendered any judgment affecting the same, but simply dismissed the plaintiff’s action, without trial and without evidence, such judgment does not support a plea of former adjudication. . . . We do not say that where it appears that the merits have been considered and passed upon, the judgment of dismissal may not be successfully pleaded as a former adjudication,” etc.
Tbe Lyon judgment decreed that if the plaintiff should not pay the indebtedness within ninety days that the defendant was authorized and directed to proceed witb foreclosure of said lien bond and mortgage in accordance witb the terms thereof, but having dismissed plaintiff’s action, and there being no allegation in the action or prayer for foreclosure, this portion of the judgment was not supported by the pleadings. This principle of law was expressly declared in Hoell v. White, 169 N. C., 640, 86 S. E., 569.
In view of the facts disclosed by the record, we are of the opinion that the judgment rendered by Lyon, J., at the August Term, 1927, was not an estoppel upon Cullen Satterwhite, and, therefore, the judgment of Grady, J., at the February Term, 1929, is
Reversed.