The appellant sought by this suit a decree declaring that in and prior to the month of June, 1905, the appellees held the legal title to 1,000 shares of the capital stock of the Oregon Water Power & Railway Company, in trust for the appellant’s testate, William T. Muir, and continued to hold the stock for the latter and his successors in interest until about April 27, 1906, when they sold all of the stock of the power and railway company, including the 1,000 shares so held in trust by them, at the price of $65 a share, and that after such sale, the appellees held the sum of $65,000 for Muir until his death on the 4th day of November, 1911, and that ever sin'ce the date last mentioned the appellees have held and now hold the said money in trust for the appellant herein as representative of said William T. Muir, deceased, for which amount, with interest and costs of suit, the appellant prayed judgment.

The defendants to the suit interposed various defenses, among which was one setting up in bar an action brought by Muir June 24, 1911, in a state court of Oregon, in which action the present appellant was substituted as executrix of the estate of the deceased, Muir, which action resulted in a judgment of the trial court granting a motion made by the defendants thereto (who are the present appellees) for a nonsuit and dismissing the action, which judgment was subsequently affirmed hy the Supreme Court of the state on appeal thereto. Muir v. Morris, 80 Or. 378 , 154 Pac. 117 , 157 Pac. 785 . Thereafter a petition for a rehearing of the case was presented to the court in banc *98 on consideration of which petition the court states ( 80 Or. at page 393 , 157 Pac. 785 ) that—

Such re-examination resulted in a further statement by that court of the facts of the case (which appear to have been also quite fully stated in its original opinion), and in a further opinion of the court denying the rehearing and again affirming the judgment of the trial court dismissing the action. It clearly appears, from those opinions that the merits of the case were involved in the motion for a nonsuit made by the defendants at the close of the testimony for the plaintiff at the trial.

That case was, as has been said, begun by William T. Muir, and, he having died within a few months thereafter, the present appellant was substituted in his stead in the action in the state court. The facts calling for and receiving the judgment of the state courts, as well as the pleadings in those courts, were thus stated by the Supreme Court of the state on the petition for rehearing ( 80 Or. 393 , 157 Pac. 785 ):

A comparison of the foregoing facts with the record upon the present appeal shows, in our opinion, that the substantial and controlling facts in the two cases are precisely the same; and it is in effect, we think, so stated in this excerpt from the opinion of the court below ( 257 Fed. 153 ):

The court below proceeded to consider the alleged arrangement regarding the setting aside of the 1,000 shares of the power company stock to Morris Bros., for William T. Muir as an independent agreement, and, without undertaking to decide whether or not it was merged in the written agreements of the parties, held that the evidence did not sustain the contention of the complainant. That the alleged independent agreements were so merged, however, was expressly decided in the former action.

We have, therefore, the identical questions presented on this appeal that were contested on the merits between the same parties in the former action in the state court of Oregon. Speaking of a similar condition the Supreme Court of that state said in Stager v. Troy Laundry Co., 41 Or. 141 , 68 Pac. 405 :

In White v. Ladd, in the same volume ( 41 Or. 332 , 68 Pac. 739 , 93 Am. St. Rep. 732 ), the same court further said:

The case of Carroll v. Grande Bonde Electric Co., 49 Or. 477 , 90 Pac. 903 , relied on by the appellant, was an action by the administrator of the estate of one Leonard Carroll to recover damages alleged to have been caused by the negligence of the defendant company, the answer of which denied such negligence, and also set up contributory negligence on the part of the deceased. The action was tried with a jury, and after the plaintiff had introduced her testimony, and rested, the defendant moved for a nonsuit, on the ground, among others, that the death of her intestate was caused by his own negligence. The motion was granted — the record reciting:

The judgment in that action was subsequently affirmed on appeal, and thereafter another action was brought for the same cause by the same plaintiff against the same defendant, to which the defendant pleaded the judgment in the former one as a bar. The statute of the state authorized a judgment of nonsuit in such a case against the plaintiff on motion of the defendant, when upon the trial the plaintiff fails to prove a case sufficient for submission to the jury, and that when such judgment is given the action is dismissed, but that such dismissal shall not have the effect to bar another action for the same cause. Sections 182, 184, B. & C. Comp. In holding the former action no bar in that case, the Supreme Court of the state said:

But Mr. Chief Justice Bean, who delivered the opinion of the court, proceeded to say that—

_ It is obvious that that statement was not necessary to the decision, since the court had already practically decided the question upon and *102 in accordance with the express declaration of the state statutes; but, if it can be properly regarded as an essential part of the decision, we are unable to see how it can be reconciled with the subsequent decision of the court in the subsequent case of Muir v. Morris, 80 Or. 378, 404 , 154 Pac. 117 , 157 Pac. 785 , hereinbefore referred to, in which the same court, in an action where a motion for a nonsuit was made by the defendant and granted, twice fully considered and decided the case upon the merits. That being so, and the two suits of Muir v. Morris being between the same parties, and the evidence being practically the same in each, we see no escape from the conclusion that the former judgment is a bar to the present suit, notwithstanding the contention on the part of the appellant that the bill in the present case contains various allegations not contained in the complaint in the law action.

The judgment is affirmed.