Appeal from the Twelfth District.

Action for the breach of a written contract of sale, by which, on the tenth of October, Bull, Baker & Co. contracted to sell Earl & Co. one hundred hogsheads of bacon, and to deliver in sixty days, or at any time before, upon demand and payment. The contract particularly specifies the quality to be delivered, and provides, in case of difference, for an arbitration. The complaint states that, at the expiration of the sixty days, defendants did not have bacon of the proper quality to deliver, and could not perform the contract; that thereafter, on the nineteenth December, Earl & Co. received from Bull, Baker & Co., certain one hundred hogsheads bacon, at which time, Bull, Baker & Co. executed the following memorandum.

“San Feancisco, Dec. 19, 1855.

“ Messes. Eabl & Co.

“ Bo’t of Bull, Baker & Co., 100 Hhds. Bacon, 80,000 lbs. 26 cts. • $20,800.

“ The Bacon, as per the above bill, we hereby guarantee to be of the quality as sold under contract to Messrs. Earl & Co., of October 10, 1855. Bull, Bakeb & Co.”

That the bacon was not of the quality as sold by the contract, of which defendants had notice; that there was a disagreement and arbitration, and the quality was found to be not such as was sold; that the bacon was less in value than that described in the contract by $6,400; that this difference plaintiffs demanded, and defendants refused, and plaintiffs claim the amount as damages*

The defendants answering, deny all the allegations in the complaint except the execution of the original contract, of which they aver performance, and the acceptance of the performance by plaintiffs. They also set up as a bar to this action, the judgment and proceedings in the suit of Bull, Baker Go. v. Bari fy Go., for the price of the bacon, as is stated in the opinion.

The case was submitted to the Court, without a jury, by consent, to try jhe issues arising upon so much of the answer as set up this former judgment in bar. It was submitted on the pleadings and exhibits, and the statement, on motion for new trial, in the former suit of Bull, Baker fy Go v. Bari fy Go.; and the Court found that “ the matters and things in the complaint herein set forth, were not in issue, and were not heard, considered and determined ” in the former action; and that, as law, such former judgment was not a bar, and that plaintiffs were entitled to judgment.

Subsequently the cause was tried before a jury as to the other issues in the record, and a verdict rendered for plaintiffs, $1,945. Judgment accordingly.

The record in the former suit shows that Bull, Baker & Co., as plaintiffs, counted on the original contract of sale and its performance, and specially stated that they had been ready and tendered, and offered performance, at all times, and on the nineteenth of December did deliver the bacon, as by contract required and in performance thereof; that the same was of the quality contracted for, and was accepted as such. They further counted on goods sold and delivered.

Earl & Co., defendants, answered—first, denying each and, every allegation in the complaint; second, denying the execution of the contract, as set out in the complaint. They then set out the contract of sale in terms (which is the same substantially as the one counted on). It is then averred that plaintiffs failed to comply with the contract; that there was a disagreement, which was submitted in pursuance of the terms of the contract, and a finding that the bacon was not within those terms. It is then stated that the defendants rely upon the failure of plaintiffs to comply with the contract, and on the award as a defense. On the trial of this case, there was evidence as to the quality of the bacon.

McDougall & Sharp, for Appellants, argued that the question as to the quality of the bacon was in issue and directly adjudged in the former suit; that the contract being the subject of the action, its full performance was alleged, particularly as to the quality of the bacon, and that it was accepted by the vendees as of the quality specified in the contract ; that the Court charged the jury in effect, that acceptance and acquiescence -without objection, amounted to an admission of full performance, and estopped the vendee thereafter setting up a failure to perform; that thereupon, by the verdict and judgment, it was adjudged that the vendees had accepted the performance, and had been estopped; and that the Court instructed the jury only on the point of acceptance, because, the issue as to quality being before the Court and jury by the pleadings and the evidence, acceptance being found, the vendee was concluded as to quality. (Sprague v. Slake, 20 Wend. 61; 2 Harr. & Johns. 353; 3 McLean, 386; 7 Blackf. 604; Fisher v. Samada, 1 Camp. 190-3.)

That the question as to quality having been once put in issue, and a general verdict found and judgment, (evidence or no evidence) the matter is a thing adjudged. (7 Bac. Abr. 633 ; Pleas and PI. J. 13; 1 G-reenl. secs. 522, 528; 3 Coke, 7; Farrer’s Case; Sitcherv. Campbell, 3 Wills, 308; Guen v. Gouverneur &¡ Kemble, 1 Johns. Cases, 436, Radcliff, J. 491, Kent, J. 502; Brockway v. Kinny, 2 Johns. -209 ; Platermer v. Best, 11 Johns. 530; Bhh v. Bingham, 7 Barb. 494; Bubery v. O’Con-nor, 3 Corns. 511.)