Jacoby

There were two appeals in this case, one hy plaintiff and the other by defendants. The first was considered by this court in an opinion filed November 7 last and reported ante, p. 183, [ 137 Pac. 264 ], to which reference may be had for a statement of the nature of the action. Since that decision was rendered the appeal by defendants has been transferred to this court by the supreme court.

The contention of appellants here is that they should have judgment for the reason that the issues in this action were determined, or could have been determined, in a prior action that was tried between the same parties for the same amount. This prior action was properly pleaded in bar and as to it the court found as follows: “That on August 21, 1905, said plaintiff, O. D. Jacoby, commenced an action in said superior court, in and for the city and county of San Francisco, against said Wilbur S. Peek, Herbert R. Peck and W. S. Peck, Jr.,' copartners doing business as W. S. Peck & Co., and said James J. Gildea and the J. J. Gildea Co., a corporation, praying judgment against said defendants for the sum of $5942.50, upon the same contract upon which this action was brought, and which is the same…