dissenting.
If the majority are correct, we now have compulsory joinder of causes even though the legislature (former ORS 16.220)1 and the Council on Court Procedures (ORCP 24(A))2 have treated joinder as permissive. There will be many surprised lawyers and judges, as *439well as legislators, requiring some hasty reconnoitering to evaluate the new rule.3
The majority’s reasoning, however, belies the foregoing result which they seem to reach. First, the majority conclude that plaintiff is wrong when he argues "that his first action was based on a contract between him and defendant for the construction of a house, while the present action is based on a contract between defendant and plaintiff’s assignor West Coast.” (46 Or App at 434.) They go on to elaborate that this action presents nothing more than a different theory for relief from the theory asserted in the prior action (46 Or App at 436), and could have been joined in the prior proceeding under former ORS 16.220(1)(h). (46 Or App at 437.) It follows, they say, that because the present theory could have been litigated in the first action, it is barred by res judicata.
Because their reasoning is confused, they reach a confusing result. If the claim presented here is not a separate and distinct cause of action, but only a different theory of recovery, there is no reason to consider the statute (or rule) permitting the joinder of causes of action or suit: there would be only one cause of action with the different theories set out in separate counts. Cook v. Kinzua Pine Mills Co. et al, 207 Or 34, 293 P2d 717 (1956).
The basic error of the majority lies in its major premise: that plaintiff’s present claim is not a separate cause of action. It clearly is; he could have brought this action if he had never heard of defendant, much less entered into a construction contract with him. Plaintiff is asserting the rights of West Coast against defendant on an account receivable which he *440purchased from West Coast. The construction contract with defendant, or its breach by defendant, are immaterial to this claim. Suppose plaintiff were to reassign the account to West Coast; would West Coast, as assignee, be barred from asserting the claim against defendant because its assignor is barred from asserting it? The majority opinion would compel an affirmative answer because an assignee can have no greater rights than his assignor.
It follows that because plaintiff is now asserting a separate cause of action, " 'the judgment in the first action is conclusive only as to the matters essential to the judgment which were actually litigated and determined therein.’ ” Dean v. Exotic Veneers, Inc., 271 Or 188, 191-92, 531 P2d 266 (1975), quoting from Gwynn v. Wilhelm, 226 Or 606, 608, 360 P2d 312 (1961). The first action determined only that plaintiff was a volunteer in paying West Coast and therefore defendant’s breach of the construction contract was not the cause of that element of damages claimed. That determination is irrelevant to the present cause of action to which there may be defenses, but not that one.
The language quoted by the majority from Troutman v. Erlandson, 287 Or 187, 598 P2d 1211 (1979), (46 Or App at 435-36) must be read in light of the facts of that case where the plaintiff was asserting in the second lawsuit a different theory of recovery arising out of his partnership with defendant. That decision is not inconsistent with my view of this case, and does not detract from the classic statement of the rules applicable to res judicata stated in Dean v. Exotic Veneers, Inc., supra.
I would reverse the summary judgment for defendant, and therefore respectfully dissent.
Former ORS 16.220(1) provided, in part:
"The plaintiff may unite several causes of action and causes of suit in the same complaint when they all arise out of:
"* * * * (Emphasis added.)
Former ORS 16.221(1), applicable at the time of plaintiff’s first action, provided:
"A plaintiff may join in a complaint, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.” (Emphasis added.)
ORCP 24(A) provides:
"A. Permissive joinder. A plaintiff may join in a complaint, either as independent or as alternate claims, as many claims, legal or equitable, as the plaintiff has against an opposing party.” (Emphasis added.)
Unanswered questions flowing from the majority’s analysis include: (a) must a landlord join an action for rent with an FED or be forever barred? ORCP 24(B) permits joinder; (b) Must a counterclaim be asserted by a defendant where permitted (but not required) under ORCP 22(A) or be barred? By contrast to the ORCP, the Federal Rules of Civil Procedure provide for both compulsory (FRCP 13(a)) and permissive counterclaims (FRCP 13(a)).