dissenting:
I do not agree with the result reached by my colleagues. According to their analysis, Roy Keith’s suit is not barred by the doctrine of res judicata because his suit advances a different cause of action than the suit of B & B Builders.
While their statement of the doctrine is correct, the law and its application go further. It has long been recognized that a second suit between the same parties on a different cause of action may be precluded if there is an identity of issues in the suits, and there has been a prior adjudication of those issues in a suit between the same parties. This rule applies where the question upon which recovery in the second action depends has, under the same circumstances, parties and conditions, been previously adjudicated. (Hoffman v. Hoffman (1928), 330 Ill. 413; Public Utilities Com. v. Smith (1921), 298 Ill. 151.) This doctrine of collateral estoppel or estoppel by verdict is a derivative of res judicata. Instead of preventing a second assertion of the same claim or cause of action, the rule of collateral estoppel prevents a second litigation of issues between the same parties even if presented in a different cause of action.
B & B Builders in their suit (No. 78-M-3586) claimed they satisfactorily performed all their duties under the contract to build a house for Roy Keith. Such allegation was a necessary element in their cause of action to collect on the contract. Since judgment was entered on B & B’s suit, in their favor, the issue of successful contract performance cannot be relitigated. Roy Keith’s suit seeks to collect damages from B & B because he claims the contract was not satisfactorily performed and warranties were breached. This issue had its day in court. It cannot be relitigated. Collateral estoppel bars the suit of Roy Keith.
I am mindful of the elective counterclaim rule and find it wholly compatible with the principles of collateral estoppel and res judicata. While all issues between parties may be tried at one time or over a period of time, I find no suggestion in the Civil Practice Act that one issue may be tried and retried between the parties over a period of time and under the label of a different suit or cause of action.
Accordingly, I would affirm the trial court.