Cohn & Son v. Farkas

Russell, C. J. 1. The petition might have been amended so as to set forth a cause of action for such damages, consequent upon a breach of the contract as to the glass front, as may have arisen after the adjudication which was pleaded in bar. 2. The plea of res judicata was not filed too late, but the issue raised by it is for determination by a jury. The court therefore erred in sustaining the plea of res judicata and in thereupon dismissing the petition, instead of submitting to the jury evidence upon the issue raised by this plea. Judgment reversed. Peacock & Gardner, for plaintiffs, cited: 76 Ga. 769; 87 Ga. 305; 74 Ga. 47; 104 Ga. 619; 90 Ga. 756; 105 Ga. 395 (3); 61 Ga. 67; 84 Ga. 69 (4); 138 Ga. 101; 68 Ga. 40; 5 Ga. App. 139 (1); 5 Ga. App. 262; 10 Ga. App. 161. Leonard Parkas, for defendant, cited: 70 Ga. 579; 51 Ga. 232; 59 Ga. 157; 74 Ga. 47; 55 Ga. 228; Civil Code (1910), § 4389; 106 Ga. 427; 84 Ga. 5; 54 Ga. 327; 79 Ga. 319; 103 Ga. 327.