
    17744.
    Riley et al. v. McCauley et al.
    
    Judgments, 34 C. J. p. 743, n. 76; p. 855, n. 40, 41; p. 856, n. 47; p. 862, n. 99; p. 863, n. 6; p. 920, n. 67, 68; p. 921, n. 74, 78.
    Decided September 28, 1927.
   Stephens, J.

1. In a suit upon a builder’s contract, instituted by the contractor to recover of the owner the alleged balance due under the contract after the completion of the building, where the defendant pleads a failure upon the part of the plaintiff to complete the building in accordance with the terms and specifications of the contract, by alleging that under its terms the plaintiff was under obligation to so construct the basement of the building as to render it waterproof, and that the plaintiff had failed to comply with this provision of the contract, to the damage of the defendant, the pleadings and the evidence introduced thereunder put in issue the questions as to whether a duty rested upon the plaintiff under the contract to so construct the basement as to render it waterproof, and as to whether or not the plaintiff had complied with this duty. The judgment rendered in that case, finding for the plaintiff in a certain amount, adjudicated the question of such liability.

2. In a suit afterwards instituted by the plaintiff against the defendant in the municipal court of Atlanta, to recover of the defendant the costs alleged to have been incurred by the plaintiff in working upon the basement and rendering it waterproof, where the work was done prior to the institution of the former suit, although this item was not sued for in that suit, the judgment rendered in that suit is res judicata of the plaintiff’s right to recover in the present suit. The plea of res judicata was established conclusively as a matter of law, and the verdict found in the municipal court of Atlanta in behalf of the plaintiff was as a matter of law unauthorized. The judge of the superior court erred in not sustaining the certiorari brought by the defendant, excepting to the judgment of the appellate division of the municipal court affirming the judgment of the trial judge in that court overruling the defendant’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.

Certiorari; from Fulton superior court—Judge Howard. October 7, 1926.

Watlcins, Asbill & Watlcins, for plaintiffs in error.

Dorsey, Shelton & Dorsey, Ralph II. Pharr, contra.  