and the guard which was adjusted with the feed, was contributory negligence on the part of the respondent. cause the board to jump forward a matter of the failure to properly adjust the front feed, 2 feet. Under this theory of the case, having undertaken an employment attended with such obvious danger, any reasonably intelligent person must be held to have assumed the risk of the employment. Bradley v. Railway Co., 138 Mo. 293, 39 S. W. 763; Beckman v. Anheuser Busch Brewing Ass'n, 98 Mo. App. 555, 72 S. W. 710. See "The principle of assumed risk rests upon the ground that it is an implied contract between the employer and the employé that the employé shall assume the risk of all dangers obviously incident to his employment. Bauer v. American Car & Foundry Co., 132 Mich. 537, 94 N. W. 9. The employé assumes the risk of all dangers obviously incident to his employment, whether the employer is negligent or free from negligence in exposing him to those dangers. If the employer is not negligent in exposing the employé to those dangers, he is not liable for any injury resulting, for two reasons: (a) He himself is free from negligence; and (b) the employé has assumed the risk. When, however, the injury to the employé results from an assumed risk to which an ordinarily prudent employer would not have exposed him, there can be no recovery; not because the employer was not negligent, for he was negligent, but because the employé assumed the risk." Bradburn v. Wabash R. Co., 134 Mich. 575, 96 N. W. 929. Respondent claims that the saw was not guarded. "It is obviously the duty of an employer, under the principles of this chapter, to cover, fence or guard dangerous machinery or dangerous places in the premises where his employés are required to work or to be, provided this can be done consistently with a reasonably proper and effectual operation of such machinery, or with the proper and effectual conduct of his business." 4 Thompson on Negligence, § 4017. An employé will not be held to have as sumed the extra hazard of working with unguarded machinery which should have been guarded, under the foregoing rule, unless he knew that ordinary prudence required the guarding of such machinery and was cognizant of the extra hazard incident to its operation without the guard, provided his injury was caused by the absence of a guard. The judgment and order denying appellant's motion for a new trial are reversed. Costs awarded to appellant. BUDGE, C. J., and MORGAN, J., concur. STATE v. MILLS et al. (No. 1999.) (Supreme Court of New Mexico. Dec. 26, 1917.) (Syllabus by the Court.) 1. JUDGMENT 695-RES JUDICATA. 2. INDEMNITY 11 - JUDGMENT AGAINST NITOR. A judgment creditor of a surety on a bond given to secure the payment of territorial money on deposit in a bank cannot maintain an action against an indemnitor of the surety, nor his heirs, where the indemnity bond is conditioned on saving the surety harmless from loss or damage on account of signing as surety, and the surety is insolvent, and has suffered no loss or damage. Appeal from District Court, Santa Fé County; Mechem, Judge. Complaint by the State of New Mexico against Melvin W. Mills and others. From a judgment dismissing the complaint, the State appeals. Affirmed. Frank W. Clancy, Atty. Gen., for the State. William J. Lucas, of East Las Vegas, for appellees. HANNA, C. J. This is an appeal by the state of New Mexico from a judgment rendered in the district court for Santa Fé county dismissing a complaint filed by it against Melvin W. Mills, Horace C. Longwill, Benton E. Longwill, William D. Longwill, and Martha E. West. [5] In this case the respondent denied that there was a guard over the saw and front feed roller, but his witnesses testified that there was a guard over the same, and he himself testified that the guard was adjustable As the questions involved herein are deand raised and lowered with the feed. It was shown that this guard was not one fur-pendent upon the pleadings, it becomes necnished by a standard manufacturer of saw-essary to state the contents thereof at some mill machinery, but was a "homemade af-length, The complaint alleged: That all fair." It was not shown wherein the guard was defective or differed materially in principle from other guards used for the same purpose. Respondent having admitted he knew before the injury that the front feed roller was loose, the guard being attached to the roller did not rest upon the board in front of the feed or as near the board as it would have done if the front feed had been properly adjusted. As we have noted before, of the defendants, excepting Mills, were the children and heirs of Robert H. Longwill, deceased, who died prior to October, 1903; that all of said children are nonresidents of this state, but are the owners of certain real estate situate herein which came to them by inheritance or devise from their father, Robert H. Longwill; that there is no personal property in this state of the said Robert H. Longwill which could be made available for the payment of his debts; | solvency; wherefore the state prayed that it that Robert H. Longwill, being interested have judgment against the defendants for in securing a deposit of territorial moneys in $5,834.26, with interest and costs. the Taos County Bank, procured said Mills to execute, as surety, a bond, on May 5, 1893, the said Longwill agreeing to indemnify the said Mills for any loss or damage that might accrue to him on account thereof; that Mills had no interest whatever in securing deposits of territorial moneys in said bank, and executed said bond for the benefit of said Longwill, who was disqualified under the law to become surety on said bond, and in consequence of said offer of indemnity; that Mills would not have executed the same if the said idemnity bond had not been offered, and the bank would not have secured the said deposit of territorial moneys unless it was able to obtain the signature of some other responsible person as surety; that at the time of the execution of said bond Mills was solvent and able to respond in damages for an amount far above the penalty of the said bond; that the said bank subsequently failed and breached the conditions of said bond; that on August 12, 1903, an action was begun by the territory of New Mexico against the said bank, Mills, and others on said bond, the defendants in this case, other than Mills, filing a demurrer to the complaint of the territory through an attorney employed by them to represent them; that a motion was subsequently filed therein by Mills, asking that the defendants herein be made parties, for the reason that he had no interest in said matter, having signed said bond at the instance and request of said Longwill, the ancestor, who executed a bond indemnifying him against loss; that the court denied said motion, except that it "admitted" the "Longwill estate" as a party to wage its defense in the name and for the benefit of the defendant Mills; that the control of the defense to the action was therefore taken out of Mills, and invested in the estate, and the litigation was protracted by the efforts of the attorney of the said Longwill heirs, the defendants in the case at bar, until the judgment of the trial court was affirmed, in effect, by the judgment of the territorial Supreme Court on a much later date, and of the Supreme Court of the United States in June, 1915; that at the time of giving said bond Mills was solvent and able to pay the penalty of the bond, but became insolvent in 1908, and has since continued so to be, and, "had it not been' for the intervention of the said heirs * Upon motion of defendants, other than Mills, the court struck from the complaint the matter concerning the alleged representations of Longwill to Mills; the reason prompting the execution of the bond on the part of Mills; the interest of Mills in securing the deposit of public moneys in said bank and what the bank may have been required to do in the absence of the execution of said bond by Mills; the result of the order of the court admitting the Longwill estate as a party defendant, with the right to wage defense in the name and for the benefit of Mills in the case brought by the territory on the bond; the protraction of the litigation and the results consequent thereon, including what might have ensued but for such intervention and the insolvency of Mills. Prior to the taking of this action on the part of the court, and subsequent to the time when said motion to strike was filed, the defendants, other than Mills, filed a demurrer to the complaint of the state, which was sustained by the court, which at the same time ordered certain matters stricken from the complaint. In substance, the grounds of the demurrer were the following: (1) That the same questions were raised and determined in the case of Territory of New Mexico v. Taos County Bank, Mills, and Others as are presented by the state here, the judgment in that case constituting res adjudicata of all questions upon which the state relies herein; (2) that said defendants are not liable for debts, contracts, or torts of their ancestor; (3) that. neither the territory nor state of New Mexico are parties to the contract of indemnity, nor in privy with the parties thereto; (4) that state has no rights under the indemnity contract simply because it is a creditor of Mills; (5) that the purpose for which said contract of indemnity was made does not affect the rights and obligations of said defendants; (6) that certain portions of the complaint are repugnant; (7) that the failure of the territory to enforce its judgment against Mills was due solely to the neglect of its officers; (S) that there is a misjoinder of parties defendant in that no cause of action is 'stated against Mills; and (9) that several causes of action are stated in the complaint without being separated, and are so intermingled that it is impossible to segregate them. From an examination of the complaint it and the con- is difficult to understand upon what theory sequent protraction of the litigation, plaintiff the state proceeded. Counsel for the state would have been able to obtain judgment argues that the trial court took the view against the said Mills and to collect the that the state sought to be subrogated to same while the said Mills remained solvent"; the rights of Mills under the contract of that since the rendition of the judgment favor of Mills. indemnity executed by the elder Longwill in Counsel says that: against Mills it has been useless to issue ex"The liability sought to be enforced against primarily upon the indebtedness of their father, created by him, acting through his agent and representative, Mills, but if, upon all the facts, it could be held that the right of the plaintiff to maintain this action must be based upon the idemnity bond, then it is apparent that the elder Longwill was not a stranger to the transaction with regard to which the indemnifying bond was given, but was primarily and vitally interested therein, and should therefore be held liable to the state quite the same as though he had himself, as a surety, executed the bond of the bank to the territory." See, also, Kingsley v. Davis, 104 Mass. 178, and Beach v. Milford Ice Co., 87 Conn. 528, 89 Atl. 181, and authorities therein cited. The territory having elected to sue Mills, who under its theory was simply the agent of Longwill, and obtain a judgment against him, is concluded from maintaining the same action against the elder Longwill on the theory that the latter was the principal; consequently the children and heirs of the elder Longwill cannot be held. [1] 1. The action cannot be maintained upon any theory of which we have any knowledge. The first theory advanced by counsel for the state presupposes that the [2] 2. Neither can the defendants, other elder Longwill became indebted to the ter- than Mills, be held liable on the second theritory and then to the state as its succes- ory advanced by counsel for the state, viz. sor in the place and stead of Mills. This that because of the state's inability to comtheory is based upon the premise that Long-pel Mills to make good its loss on the breach will was the principal, disclosed or undis- of condition of the Mills bonds, it may step closed, of Mills; hence the liability of Mills into the shoes of Mills and proceed against is the liability of the elder Longwill, and the heirs of Longwill who became vested the defendants here, other than Mills, hav- with real estate of the ancestor situate in ing acquired some property from the elder Longwill, by devise or inheritance, should be chargeable for the debt of their ancestor to that extent. this state. The reason for this is that the condition in the indemnity bond from the elder Longwill to Mills was that the former would save the latter harmless from "any loss or damage whatever by reason of the signing said bond." The accrual of liability on the part of the indemnitor under such circumstances will be found discussed, with authorities cited, in 14 R. C. L. "Indemnity," § 13. Reference thereto will disclose that the liability of the indemnitor does not accrue until the indemnitee has actually suffered loss or damage. In Hasbrouck, for the Use of Clow, et al. v. Carr, 19 N. M. 586, 145 Pac. 133, the court said: "Where a stranger undertakes to indemnify a surety, such undertaking does not create a trust in favor of creditors, nor can they be subrogated to the surety's rights, and likewise, where a stranger undertakes to indemnify a surety, and the surety thereafter becomes bankrupt so that it cannot pay any of its suretyship obligations, the legal representative of such surety cannot enforce the indemnity, because such surety lost nothing, and was not damaged, and cannot be damnified by such judgment." 串 * * The foundation of appellant's contention upon this theory is the Mills bond. Eliminating the question as to whether the children of the elder Longwill would be liable to the state in any event, the question is whether the state may proceed against Longwill, the ancestor, who was not a formal party to the bond given by mills and others to secure deposits of territorial moneys in the Taos County Bank; that is, assuming that the elder Longwill was living, could the state proceed against him on the theory that he was the principal of Mills, the agent, in the execution of said bond? If there was any question in the first instance as to who was liable to the territory, that question became settled by the conduct of the territory in instituting an action on the Mills bond and obtaining judgment against Mills in the face of recitations in the bond and of numerous facts called to the attention of the territory in that action establishing that Mills Counsel for the state criticizes the appliwas prompted to execute said bond as a fa- cation of that doctrine to the facts in the vor to Longwill, and was secured in that un-case at bar on the ground that Longwill, the derstanding by a bond of indemnity execut-ancestor, was not a "stranger" to Mills, but ed by Longwill. If Mills was but the agent a person vitally interested in securing terriof Longwill, who was not a qualified bonds- torial deposits in said bank. Anderson's man under the law, that fact became known Law dictionary defines the word "stranger" to the territory during the progress of the as follows: action brought by the territory on that bond, and as the issue there and here is identical, so far as the liability of Mills and Longwill is concerned, the territory elected to proceed against the agent; hence is now barred from proceeding against the alleged principal or those in privy with him. In 23 Cyc. 1265, it is said: "Strangers are third persons; generally all persons in the world except parties and privies. to a covenant are said to be strangers to the For example, those who are in no way parties covenant." In O'Donnell v. McIntyre, 118 N. Y. 156, 23 N. E. 455, it was said that in legal significance the word was opposed to the word "privies." See, also, Mavity v. Stover, 68 Neb. 602, 94 N. W. 834, and Suppiger v. Gerrels, 20 Ill. App. 629. In the case at bar "A person who, after ascertaining all the material facts of the agency of another with whom he has contracted, recovers a judgment against the agent on such contract, is barred from suing the state is in no position to assert that the termined against them, they could not, when 6. JUDGMENT —746 OF FORMER JUDGMENT. hence more than a stranger, and therefore senting such balance had been delivered was dethe criticism is without foundation. Mills, so far as it is stated in the pleading, having suffered no loss or damage, and being insolvent, has no cause of action against his indemnitor, and cannot be damnified by the judgment rendered against him and in favor of the territory of New Mexico. Consequently, even assuming that the state may be subrogated to the rights of Mills, no cause of action exists against the elder Longwill, his estate, or his heirs or devisees. It is therefore unnecessary to discuss the liability of heirs for the debts of their ancestors or any of the other numerous questions urged upon us by counsel for the state, as the determination of the foregoing two questions completely disposes of the merits of this case. For the reason stated, the judgment of the trial court is affirmed; and it is so ordered. ROBERTS, J., concurs. The estoppel of a former judgment, determining that sellers had not delivered all the hay contracted for, was not waived by the purchasers bringing an action for damages for the failure to deliver the full amount contracted for, since any such waiver must necessarily relate to a question determined in the former action. 7. SALES 418(2)-DAMAGES. The measure of damages for the breach of an executory contract for the sale and delivery of personal property is the difference between the contract price and the market value at the time and place of delivery, or within a reasonable length of time thereafter. 8. DAMAGES 62(4)—DUTY TO REDUCE. PARKER, J., being absent, did not par- by the performance of his duty, falls upon him. ticipate in this opinion. STILLWELL et al. v. HILL et al. (Supreme Court of Oregon. Dec. 18, 1917. On Petition for Rehearing, Jan. 15, 1918.) 9. EVIDENCE 113(2)-MARKET VALUE. Where the value of personal property is in issue, if the same has a market value at the time and place in question, the evidence is usually confined to its value at such time and place, or at a reasonable time before and after that particular time. 10. EVIDENCE 113(2)—MARKET VALUE. Where the value of personal property is in 1. SALES 354(9)-ACTION FOR PRICE-AF-issue, if it has no market value at the time in FIRMATIVE DENIAL. In action for hay sold, a denial that more than a certain part of the hay was delivered, and an affirmative allegation that plaintiffs fail. ed to deliver the balance of the hay contracted for, amounted to no more than an affirmative denial, and not pleading, as a counterclaim or defense, damages occasioned by breach of the contract to deliver all the hay. 2. JUDGMENT 720-MATTERS CONCLUDED. When the second action between the same parties is upon a different claim or demand or cause of action, the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined, whether the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive Defendants in action for hay sold could elect whether they would, in that action, plead and recover on their counterclaim for damages for failure of plaintiffs to deliver all the hay contracted for, or deny the delivery and bring an independent action for damages resulting from failure to deliver. question, the market value at some other time, In action for failure to deliver hay, where The rule limiting damages for nondelivery of hay contracted for to the difference between the contract price and the market price at the time and place of delivery would not be affected by the sellers' further failure, under the contract, to furnish a feeding place for the purchasers' stock, necessitating buying hay at or transporting it to another place, since these would be separate elements of damage. 13. APPEAL AND ERROR 1140(4)-REVERSAL -REMANDING CASE. Under Const. art. 7, § 3, as to disposition of case on appeal, in action for breach of contract, a portion of verdict for plaintiff which was based on evidence admitted under an erroneous theory of measure of damages would, on appeal, be eliminated from the judgment for want of competent evidence to support it, and judgment reversed and cause remanded, with directions to enter judgment for plaintiffs for the balance of the verdict. Burnett, J., dissenting. In Banc. Appeal from Circuit Court, Union County; J. W. Knowles, Judge. Action by F. E. Stillwell and another against A. T. Hill and others. From judg5. JUDGMENT 720-MATTERS CONCLUDED. Where sellers of hay sued for balance on the ment for plaintiffs, defendants appeal. Recontract, and the issue whether the hay repre-versed and remanded, with directions. This is an action to recover damages for In October, 1916, Stillwell & Proffitt the breach of a contract for the sale of hay. Verdict and judgment went for plaintiffs, and defendants appeal. brought this action to recover damages against. H. M. C. Company, defendants, for the alleged breach of the contract of September On September 22, 1915, the defendants, H. 22, 1915, in failing, neglecting, and refusing M. C. Company, and the plaintiffs, Stillwell to deliver to them 283 tons of the hay men& Proffitt, entered into an agreement in writ- tioned in the contract. To the complaint in ing, whereby the former agreed to furnish to this action the defendants, H. M. C. Compathe latter 400 tons of hay, more or less, de- ny filed their answer putting in issue the allivered in the stack upon its premises known legations thereof, and, among other things, as the H. M. C. Company ranch, located in set up as a bar to the prosecution of this acUnion county, Or., at the price of $6 per ton, tion the record and judgment in the former on measurement of 480 cubic feet to the ton. action of H. M. C. Co. v. Stillwell & Proffitt. It was further contracted that Stillwell & To the separate answers the plaintiffs deProffitt should have the privilege of using murred on the grounds that the same did certain lands described in the contract for not state facts sufficient to constitute a dethe purpose of pasturing live stock during fense. The demurrer was sustained by the the time they were feeding the hay purchas- court. The case was tried upon the issues ed, for the sum of $350. The hay consisted made by the pleadings and resulted in a verof 25 certain stacks of hay selected and dict and judgment in favor of the plaintiffs agreed upon by the parties, 23 of which were Stillwell & Proffitt, in the sum of $1,705. located upon the pasture lands mentioned. Owing to a ton or two of the hay having It is admitted that the 25 stacks contained been used for a miscellaneous purpose there 548 tons of 480 cubic feet each. About the is a slight discrepancy in the figures of the time of signing the contract Stillwell & Prof- number of tons. fitt turned several head of cattle into the pasture lands, where they remained during the fall and winter seasons of 1915 and 1916. On October 1, before the hay had been measured, a fire broke out upon adjoining lands BEAN, J. (after stating the facts and, without the fault of either of the parties to this action, spread over these lands above). [1, 2] The first question for deterand destroyed 13 stacks of the hay stacked mination is whether the judgment in the thereon, amounting to 283 tons according to the measurement of the remaining portion. & Proffitt, entered on March 19, 1916, is a bar to the prosecution of this action. From On October 22, the 12 remaining stacks were measured by the parties and found to contain the pleadings in the former action which 263 tons, for which the plaintiffs paid the have been referred to briefly, it is noticed that Stillwell & Proffitt denied the delivery defendants $6 per ton, aggregating $1,578, and also paid them $350 for pasture land, of more than 263 tons of hay, and affirmarefusing to pay for the hay burned. There- tively alleged that H. M. C. Company failed after on January 9, 1916, H. M. C. Company to deliver the balance of the 283 tons of brought an action in the circuit court of the state of Oregon for Union county against Stillwell & Proffitt, alleging that they had sold and delivered on September 22, 1915, the pasture land mentioned for $350 and 548 tons of hay for $6 per ton aggregating $3,638, and that they had paid H. M. C. Company $1,928, leaving a balance of $1,710, for which judgment was asked. C. H. Finn and Crawford & Eakin, all of La Grande, for appellants. F. S. Ivanhoe, of La Grande, for respondents. as former action of H. M. C. Co. v. Stillwell As we view hay mentioned in the contract. the matter, this allegation amounted to no more than an affirmative denial. They did not in the first action plead their damages occasioned by the breach of the contract as a counterclaim or defense. It is a well-settled rule of law that when the second action between the same parties is upon a different claim or demand or cause of action, the Stillwell & Proffitt, as defendants therein, judgment in the first suit operates as an esanswered the complaint, denying the deliv-toppel only as to the point or question actualery of the hay burned or the delivery of ly litigated and determined, and not as to more than 263 tons; alleging that they paid other matters which might have been litigat$1,578 for the 263 tons, and $350 for the pasture, aggregating $1,928, and, in effect, denying any liability for the hay burned, and prayed for "judgment against plaintiffs for their costs and disbursements" in the action, "and that they be allowed to go hence without delay." A reply was filed putting the cause at issue, and the same was tried to the court and jury, resulting in a verdict and judgment in favor of the defendants, Stillwell, & Proffitt, for their costs and disbursements. No appeal was taken from this ed and determined. This doctrine holds true |