Him upon the same cause of action is true but the

him upon the same cause of action is true, but the effect of a judgment against
Lewisohn as a precedent is not that of res judicata, and the Massachusetts court was
under no obligation to follow the decision as a mere judicial precedent. Nor would
assistance in the defense of the suit, because of interest in the decision as a judicial
precedent which might influence the decision in his own case, create an estoppel as
to Bigelow. Stryker v. Goodnow, 123 U. S. 527 . Also Rumford Chemical Works v.
Hygienic Chemical Co., 215 U. S. 156 .
Page 225 U. S. 127
But it is said that, if Bigelow was not in every sense a party, he was privy to Lewisohn,
who was, and that the estoppel in the adverse judgment in the suit against Lewisohn
protected Bigelow as well.
But would that judgment, if it had been for the plaintiff in that case, have bound
Bigelow in a subsequent suit by the same plaintiff upon the same facts? If not, upon
what principle may he claim the advantage of it as a bar to the present suit? The
cause of action was one arising ex delicto. It was several as well as joint. The right of
action against both might have been extinguished by a settlement with one, or by a
judgment against one and satisfaction. But the claim has come in substance to this:
that, although the plaintiff had a remedy against Lewisohn and Bigelow severally or
jointly, a failure to recover in an action against one is a bar to his action against the
other, the facts being the same, although there has been no satisfaction for the injury
done. The only basis upon which such a result can be asserted is that Bigelow would
have been bound by the judgment if it had been adverse to Lewisohn, and may
therefore shelter himself behind it, since it was favorable to his joint wrongdoer.
It is a principle of general elementary law that the estoppel of a judgment must be
mutual. Railroad Co. v. National Bank, 102 U. S. 14 ; Keokuk & W. Railroad v.
Missouri, 152 U. S. 301 ; Freeman on Judgements § 159; 1 Greenleaf on Evidence,
13th ed., § 524. The mutuality of estoppel by judgment is fully recognized in both the
New York and Massachusetts decisions: Atlantic Dock Co. v. New York, 53 N.Y.
64; Brigham v. Fayerweather, 140 Mass. 411, 415; Nelson v. Brown, 144 N.Y. 384.
An apparent exception to this rule of mutuality had been held to exist where the
liability of the defendant is altogether dependent upon the culpability of one
exonerated in a prior suit, upon the same facts when sued by the
Page 225 U. S. 128
same plaintiff. See Portland Gold Mining Co. v. Stratton's Independence, 158 F. 63,
where the cases are collected. The unilateral character of the estoppel of an
adjudication in such cases is justified by the injustice which would result in allowing a
recovery against a defendant for conduct of another when that other has been
exonerated in a direct suit. The cases in which it has been enforced are cases where
the relation between the defendants in the two suits has been that of principal and
agent, master and servant, or indemnitor and indemnitee.