#### Frank Stoecker, Appellant, v. J. E. Thoren, Appellee.

Gen. No. 19,893.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Affirmed.

Opinion filed November 19, 1914.

Statement of the Case.

Action by Frank Stoecker against J. E. .Thoren to recover a sum paid by plaintiff towards the satisfaction of a judgment recovered against both plaintiff and defendant in a suit for personal injuries, and also the amount paid by an insurance company in plaintiff’s behalf under an insurance contract. The court found the issues against plaintiff and entered judgment against him for costs. To reverse the judgment, plaintiff appeals.

It appeared that prior to this suit an action was brought by one Ludwik Kowalski against plaintiff and defendant for damages resulting from personal injuries sustained by him by falling into an unguarded excavation on certain premises, that a judgment was *505recovered against Stoecker and Thoren for twenty-two hundred dollars and costs, and that plaintiff and defendant each paid one-half thereof and Kowalski executed a release running to both.

Abstract of the Decision.

1. Judgment, § 471 * —when res adjudicata on question whether codefendant was an independent contractor. A judgment against two defendants jointly in an action for personal injuries resulting from plaintiff falling into an excavation on certain premises, held res adjudicata on the question whether one of said defendants was an independent contractor having exclusive control of the premises, where the acts of negligence were charged against both defendants and the declaration contained the allegations that they were in joint possession of the premises at the time of the accident.

2. Idemnity, § 14 * —what does not show implied contract of. Where a mason contractor at the request of a general building contractor procured another to do excavating work and afterwards was requested to submit bids for the mason and brick work and a definite figure was arrived at as to the contract price including the excavation done, held that the conversations of the parties and the acts done pursuant thereto were not in the nature of an implied agreement on the part of the mason contractor to indemnify the building contractor against liability for injuries sustained by third persons on account of the condition of the premises, it appearing that the mason contractor, in procuring the excavation work acted as agent of the building contractor, and that there was no absolute agreement that the mason contractor was to have the contract for the brick and mason work.

3. Indemnity, § 11 * —when does not cover liabilities existing before execution of contract. A contract between a mason contractor and a building contractor containing a provision that: “It is further agreed the second party shall not in any manner be answerable or accountable for any loss or damage arising from negligence or carelessness of the first party to any person or persons and their prop*506erty,” held not to constitute a contract to indemnify the building contractor against liability for injuries resulting to a third person by falling into an unguarded excavation on the premises before the ' contract was signed.

*505Frederick K. Warne, for appellant.

Ringquist & Williams, for appellee; Guedon Williams, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Pam

delivered the opinion of the court.