This is an appeal by the defendant from an order entered on March 26, 1955, striking from defendant's answer paragraph 8 thereof. The action was commenced October 26, 1954. The allegations of the complaint are in substance:

Plaintiff is a farmers' co-operative association engaged in the manufacture and sale of cheese. From January 12, 1950, to the date of his death on April 13, 1950, Elmer Heckman, the husband of defendant, was employed by plaintiff as its general manager and as such "empowered . . . to sell its cheese in the most advantageous manner and in so doing he was intrusted with full authority to make his own terms of sale." Plaintiff "placed explicit reliance and trust upon [him] to sell its cheese as he saw fit to bring the highest return." Upon the death of Elmer Heckman, his wife was engaged by plaintiff as its general manager in the same capacity as her husband, and was so employed until June 1, 1952. Monthly reports were made by each of them to the board of directors of the aggregate net proceeds of the sale of cheese, but no report was made as to the prices received or the terms of sale.

After termination of their employment it was discovered by plaintiff that they had sold to Mid-State Cheese Corporation, hereinafter designated "Mid-State," a large quantity of plaintiff's cheese and that in connection with the sales the Heckmans collected from Mid-State the sum of 75¢ per 100 pounds for the transportation of cheese from plaintiff's factory to the purchaser's warehouse. Some of this cheese was transported in a truck owned by the Heckmans and part of it by a commercial hauler whom they paid at the rate of 30¢ per 100 pounds. The money so collected was retained by them. No report of the receipt of the money was ever made to plaintiff's officers. Recovery of the sums so received is demanded.

Paragraph 8 of defendant's answer which was ordered stricken, is as follows:

"8. For further answer to plaintiff's complaint and as a bar thereto, defendant alleges that heretofore the plaintiff began and prosecuted an action in the federal court for the Western district of Wisconsin wherein the plaintiff, being the identical plaintiff named in this action, was plaintiff, and Mid-State Cheese Corporation, a Wisconsin corporation of the city of Marshfield, Wisconsin, was defendant, wherein it was alleged and claimed in the complaint and in the testimony of the plaintiff's officers and agents that the said Elmer Heckman, defendant's deceased husband and the defendant transported cheese at 75¢ per 100 pounds from plaintiff's factory to the defendant, Mid-State Cheese Corporation at Marshfield, Wisconsin, which compensation for such transportation so made was the property of the plaintiff and should have been added to the price of the cheese sold Mid-State Corporation, and that in said complaint and by the evidence in said case the plaintiff claimed that the defendant and her said deceased husband acted corruptly and unlawfully retained the cost of transportation of said cheese and that they sold said cheese by reason of collecting the transportation thereon at 75¢ per 100 pounds less than the cheese should have been sold on the market; that said action so commenced and prosecuted in the U.S. district court for the Western district of Wisconsin involved the identical transaction and identical questions involved in this action; that said action was tried and concluded in said court in the Western district of Wisconsin and at the conclusion of said trial the court rendered its findings of fact and conclusions of law and found among other findings that no corrupt relationship existed at any time between the Heckmans and the Mid-State Cheese Corporation that in any way whatsoever affected the sale price of the cheese the defendant, Mid-State Cheese Corporation, purchased from the plaintiff and further found that the payments for services rendered by Heckmans and their employees in the transportation of the cheese was reasonable and not excessive and as conclusions of law the court in said action found that the plaintiff, Teegarden Co-operative Cheese Company, sustained no damage as a result of said lawful payments defendant, Mid-State Cheese Corporation, in that action, made to the Heckmans and the plaintiff's complaint was thereupon dismissed upon its merits and judgment rendered accordingly; that Teegarden Co-operative Cheese Company took no appeal from said judgment and the same stands unreversed; that the identical questions involved in this case having been once tried and the plaintiff being the same and the question involved depending upon corrupt action of Elmer Heckman and this defendant, the plaintiff in this action is thereby estopped from again trying this action involving said identical question and the decision of the court of the Western district of Wisconsin is a complete bar to the retrial of said question and is so pleaded as such by this defendant."

GEHL, J.

Plaintiff-respondent contends that because the stricken portion of the answer is not pleaded as a separate defense the order is not appealable and cites Bolick v. Gallagher (1954), 266 Wis. 208, 63 N.W.2d 93, as authority for its contention. It will be observed that paragraph 8 of the answer opens with the statement, "For further answer to plaintiff's complaint and as a bar thereto, . . ." The plea of res judicata is one in bar. It is a separate defense and is so denominated in the answer. The case is therefore distinguishable from the Bolick Case. An order striking out the portion of an answer pleaded as a separate defense is appealable. Gilbert v. Hoard (1930), 201 Wis. 572, 230 N.W. 720.

The trial court's order is based upon its conclusion that the facts alleged in the stricken paragraph o not constitute a defense, that the plea of res judicata is not available to the defendant for the reason that she was not a party to the prior action. It is conceded that she was not, and that generally speaking to permit the doctrine of res judicata or estoppel by judgment to apply the parties to the two actions must be identical.

The defendant contends, however, that it appears from the pleadings that in the transactions involved the Heckmans acted as agents of Mid-State, their privies, that the judgment in favor of Mid-State in the former action is to be accepted as conclusive against the plaintiff's right of action against her, and cites as authority Vukelic v. Upper Third Street S. L. Asso. (1936), 222 Wis. 568, 269 N.W. 273. Her contention assumes, first, that the relationship of principal and agent existed. We do not consider that it did. It appears nowhere in the record that there was a manifestation of consent by Mid-State that the Heckmans should act on its behalf and subject to its control, or a consent by the Heckmans to so act. Restatement, 1 Agency, p. 7, sec. 1.

Assume, however, that the relationship did exist. To have the benefit of the judgment of the first action defendant must go further and show that the liability of Mid-State in the former action was claimed to rest on the tortious act of their alleged agents, upon the doctrine of respondeat superior, that liability was dependent upon their culpability, and that in the former action the act of the Heckmans was determined not to have been tortious. Hawley v. Davenport, R. I. N.W. R. Co. (1951), 242 Iowa, 17, 45 N.W.2d 513; Canin v. Kesse (1942), 20 N. J. Misc. 371, 28 A.2d 68; Bigelow v. Old Dominion Copper Mining Smelting Co. (1912), 225 U.S. 111, 128, 32 Sup. Ct. 641, 56 L. Ed. 1009, 30 Ann. Cas. (1913E), 875; Pinnix v. Griffin (1942), 221 N.C. 348, 20 S.E.2d 366. That was the situation in the Vukelic Case, supra, upon which the defendant places her principal reliance, and where the court said (p. 572):

"If the principal's liability is claimed to rest on the tortious act of his agent, and in a former suit the agent's act has been determined not to have been tortious, the judgment is pleadable as a bar by either in a suit against him, although in the suit in which the judgment was rendered only the other was a party."

Mid-State was sued in the former action as one engaged in commerce and in the course of such commerce had paid commissions to the Heckmans as agents of the plaintiff, and which compensation was not for services rendered in connection with the sale of the cheese to Mid-State, a violation of the Robinson-Patman Act, 15 USCA, sec. 13 (c), which provides:

"It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid."

It will be observed that the Robinson-Patman Act applies to the payment of commissions, under which provision Mid-State was sued in the former action, and to the receipt of commissions by the other party to the transaction. To fix liability upon Mid-State for such violation it was necessary to establish only that it had made payment of the commissions, and it was not necessary to determine that payment was made by or through its agent or servant. With respect to Mid-State they were no more than joint tort-feasors, in which case a judgment for or against one is no bar to an action against the other. Restatement, judgments, p. 467, sec. 94.

The facts in the instant case more nearly resemble those appearing in Morse v. Modern Woodmen of America (1917), 166 Wis. 194, 164 N.W. 829. That was a libel action. Recovery was sought from the Modern Woodmen of America, publisher of a libelous article. One Keeler, the state deputy of the defendant association, had previously been sued by the plaintiff for having circulated the libelous article in which action judgment had been obtained by the plaintiff before trial of the action against the society. The defendant contended that the action against Keeler was a bar to the action brought against it. The court held that it was not, that Keeler and the society were joint tort-feasors. Although the court did not refer to the fact, it should be noted that the society was alleged to have been the publisher of the libel, was sued as such, and could have been held for the publication without the necessity of showing any participation by Keeler; the doctrine of respondeat superior was not in the case. The same is true in the instant case. In its previous action, that brought against Mid-State, plaintiff in order to succeed was not required to trace the liability of Mid-State through the Heckmans.

We conclude, therefore, that there is no identity of parties, first because it does not appear that the Heckmans acted as agents for Mid-State, and second, assuming that it were possible to determine that they were, the liability of Mid-State asserted in the former action was not claimed to rest upon their tortious act.

By the Court. — Order affirmed.