On Petition for Rehearing.
Lotz, J.The appellant has filed a petition for rehearing and earnestly insists that the judgment of this court in affirming the cause is erroneous. After a more careful consideration of the questions involved, we have reached the conclusion that our former opinion contains some erroneous statements, and it is now modified in accordance with the views hereinafter stated.
The appellant cites and relies upon the cases of Abernathy v. Allen, 132 Ind. 64; Pedin v. Cavins, 134 Ind. 494; Lindley v. Sullivan, 131 Ind. 588; Jennings v. Moon, 135 Ind. 168; Ross v. Hobson, 131 Ind. 166; and earnestly contends that these cases are controlling here. We have examined all the cases cited and think there is a marked distinction between them and the case at bar. The case most nearly in point is that of Lindley v. Sullivan, supra. The set-off or cross-complaint there grew out of a subsequent and different transaction and contract from that declared upon in the complaint.
In* the case at bar the complaint declares upon and seeks a recovery under a special written contract, and it is alleged that the plaintiff has fully complied with all *353the terms and conditions of that contract. This same contract is made the basis of the counterclaim and damages are sought for the breach of one of its conditions.
The plaintiff was not entitled to a recovery until he showed performance on his part, and when he showed performance he showed that he had not violated the contract in any respect. Appellant’s counsel, in support of their petition for a rehearing, say: £ £ The matters set up by the defendant in his cross-complaint were pleaded because he was compelled to make answer to the plaintiff’s action or lose his day in court. If he had not defended and a judgment rendered against him upon the complaint he could not thereafter maintain an independent action upon the matters set out in his cross-complaint. He was compelled to make his defense or lose his remedy. If he had not done so, a plea of former adjudication would have barred any action which he might have attempted to maintain thereafter upon such facts. ”
We are impressed with this argument and believe it is supported by the authorities.
The case of Goble v. Dillon, 86 Ind. 327, was an action against a physician for malpractice. The physician answered, that prior to the action for malpractice, he had instituted a suit against the plaintiff before a justice of the peace to recover the value of his services, being the same services out of which the alleged malpractice arose; that the plaintiff appeared to that action and filed an answer of general denial, that the cause was tried and he recovered judgment for his services. It was held that the action for malpractice was necessarily involved in the action to recover for the services, and that the judgment rendered was a complete adjudication of the claim for damages on account of the alleged malpractice. The principle announced in that *354case has been frequently followed by the supreme court and. by this court. Allen v. Jones, 1 Ind. App. 63; Howe v. Lewis, 121 Ind. 110.
It is true, as appellant’s counsel point out, that by section 412, Burns R. S. 1894 (section 409, R. S. 1881), it is provided that issues of fact in equitable proceedings shall be tried by the court, and that all other issues of. fact may be tried by a jury ; and that in the case of joinder of equitable causfes of action or defenses, with other causes of action or defenses, the former shall be tried by the court, and the latter by a jury, unless waived; and the trial of both may be at the same or different times, as the court may direct. And it is also.' true that section 354, Burns R. S. 1894 (section 351, R. S. 1881), provides that if any defendant personally served with notice omit to set up a counterclaim, he cannot afterwards maintain an action thereon except at his own costs; still these sections must receive a reasonable construction. If two stipulations in a contract are entirely independent of each other, an adjudication of the breach of one does not necessarily adjudicate the breach of the other. But if the issues are so formed as that a counterclaim is in fact litigated, the defendant will not be permitted afterwards to sue and recover upon the same. Such questions as are within the issues, or such as are essential to a complete determination of the points presented by' the complaint are of necessity adjudicated. Howe v. Lewis, 121 Ind. 110.
This action is not a suit on a common count to recover money due under a special contract, but it is a suit on the contract itself, alleging full performance on the plaintiff’s part. The breach set up in the counterclaim was necessarily involved in the complaint. But it does not necessarily follow from this that the appellant was not entitled to a jury trial. This depends upon the nature *355■of the issues joined on the complaint. If those issues were strictly legal and not of an equitable character, "then the appellant was entitled to a jury. If, however, the issues were of an equitable character, the issues joined on the counterclaim were of necessity drawn into <equity.
Filed October 29, 1895.The foreclosure of a mechanic’s lien is an equitable proceeding and the matters contained in the counterclaim were necessarily drawn into equity.
If appellant’s contention should prevail we might have "this anomalous condition: The court in trying the issues joined on the complaint might find that the plaintiff had fully complied with the contract on his part, and the jury in trying the issues joined on the counterclaim might find that the plaintiff did not comply with all the conditions of the contract and assess damages for the breach.
We would then have two separate, distinct and contradictory findings and the adjudications of the same matter in the same action. - Such a condition was never contemplated by our code.
Petition overruled.