100 Ga. App. 229 | Ga. Ct. App. | 1959
Lead Opinion
Where a party asserts a right of recovery on the theory that he has fully performed a contract of employment and thereby accomplished the results that under the terms of the agreement entitled him to the compensation therein stipulated, and the petition is dismissed on a general demurrer because the facts alleged do not show that he accomplished the results on which his right of compensation depends, he can not be permitted to recover in a subsequent action brought on the theory that his failure to procure such results was prevented by the defendant’s fault. To such a situation may be applied the words of Chief Justice Bleclc
Other cases of our appellate courts supporting the view expressed here and pronounced in Perry v. McLendon, 62 Ga. 598, supra, with the lucid brilliance of the great sage of Rabun are Wolfe v. Georgia Ry. &c. Co., 6 Ga. App. 410 (65 S. E. 62); Woods v. Travelers Ins. Co., 53 Ga. App. 429 (1) (186 S. E. 467). In the Woods case it is said: “Under the doctrine of res judicata, whenever there has been a judgment by a court of competent jurisdiction -in a former litigation between the same parties, based upon the same cause of action as a pending litigation, the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation.” If the rule were otherwise, a party might undertake to recover on the same transaction on a dozen different theories, in an equal number of cases, to the end that litigation would become extended indefinitely, and no cause arising out of a contract of employment could be finally adjudicated. The trial judge did not err in sustaining the plea of res judicata, and his judgment must accordingly be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. I cannot concur in the ruling that the trial court properly sustained the defendant’s plea of
While I cannot agree that the trial court properly sustained the defendant’s plea of res judicata, I believe that its judgment dismissing the petition on general demurrer should be affirmed. In order to withstand a general demurrer, the petition must contain allegations sufficient to show that the plaintiff, during the agency found “a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner” (Code § 4-213), or that a valid contract was entered into with the purchaser procured. “While the petition does allege that the purchaser procured actually offered to buy on the terms stipulated, and might thus be taken to aver that the purchaser was ready and willing to buy, it is nowhere alleged that the