Whitley Const. Co. v. Whitley, 50240

• Decision Date: 20 February 1975
• Docket Number: No. 3,No. 50240,50240,3
• Citation: 213 S.E.2d 909,134 Ga.App. 245
• Parties: WHITLEY CONSTRUCTION COMPANY v. J. E. WHITLEY
• Court: Georgia Court of Appeals

Page 909

213 S.E.2d 909

134 Ga.App. 245

WHITLEY CONSTRUCTION COMPANY v. J. E. WHITLEY.

No. 50240.

Court of Appeals of Georgia, Division No. 3.

Feb. 20, 1975.

Rehearing Denied March 11, 1975.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Hoke Smith, Atlanta, for appellant.

L. M. Wyatt, LaGrange, Davis & Stringer, Thomas O. Davis, Decatur, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

For the background of this appeal see Whitley v. Whitley, 220 Ga. 471, 139 S.E.2d 381; Whitley v. Whitley Constr. Co., 121 Ga.App. 696, 175 S.E.2d 128, and Whitley v. Whitley Constr. Co., 127 Ga.App. 68, 192 S.E.2d 563.

Plaintiff Whitley brought the present action against the defendant company to recover a judgment for unpaid, past-due, monthly instalments which allegedly had accrued under their contract from the May 22, 1969 filing of a similar action for past-due instalments in the same court, up to the December 4, 1973 filing of the present action.

The defendant's appeal from the denial of its motion for a partial summary judgment, raises the issue of whether the plaintiff is estopped to recover in the present action for unpaid instalments which allegedly accrued between the May 22, 1969 filing of the previous action and the September 10, 1973 judgment therein, by his not having amended his complaint to include all alleged breaches and sums due as of the date of the judgment in said previous action. Held:

"Under the doctrine of res judicata, 'a judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.' Code § 110-501. A somewhat different rule applies in regard to the doctrine of estoppel by judgment, since the later doctrine has reference to previous litigation between the same parties, based upon a different cause of action. In the latter case there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. (Citing) Under both rules, in order for the former decision to be conclusive, it must have been based, not merely on purely technical grounds, but at least in part on the merits where under the pleadings they were or could have been involved. Code, §§ 110-503, 110-504.' (Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833).' Morris v. Ga. Power Co., 65 Ga.App. 180, 187, 15 S.E.2d 730; Williams v. Richards, 100 Ga.App. 501, 502, 111 S.E.2d 632.

Code § 20-1401 provides: 'If a contract be entire, but one suit can be maintained for a breach thereof; but if it be severable, or if the breaches occur at successive periods in an entire contract (as where money is to be paid by installments), an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein.' (Emphasis supplied.) Cases construing this statute have held that the plaintiff cannot recover for instalments falling due after the filing of the action. See Martin v. McLain, 51...