The record presents the following question of law, to wit:
If a surgeon sues a patient to recover compensation for surgical services, and the patient makes an appearance and defends the suit, and judgment is recovered against him for such services, can such patient thereafter sue the surgeon for damages alleged to have been caused by the malpractice of the surgeon in treating the injuries?
^ It is to be noted at the outset that the defendant Kendrick was not a party to the suit brought by Saliba and Bulla against the plaintiff for services in treating his injuries. However, it was alleged in the complaint and found as a fact by the trial judge that Kendrick and Saliba “acted jointly and in cooperation in said treatment and in the setting of the fractured bones of the arm and leg of plaintiff,” etc. Therefore, it seems to follow that, upon plaintiff^ own theory, Kendrick was a copartner with Saliba in performing the services out of which the litigation grows.
The general rule governing estoppel in that class of cases to which the present case belongs, was declared in Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535, as follows: “That when a court of competent jurisdiction renders judgment in a cause properly before it, such judgment estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.”
Thus, when Saliba and Bulla sued the plaintiff upon a quantum meruit for services, it was necessary to allege and prove that the services were rendered and that they were reasonably worth a certain amount. As the defendant in that case defended the action upon the merit of the claim asserted, it was his duty to set up the malpractice complained of as a counterclaim by virtue of the fact that the malpractice grew out of the same contract or transaction which formed the basis of the claim of the plaintiffs.
*393Tbe trial judge was of tbe opinion tbat tbe principle announced in Bell v. Machine Co. 150 N. C., 111, 63 S. E., 680, was determinative of tbe question of estoppel. This Court concurs in tbe ruling of tbe trial judge. Tbe identical principle was tbus stated in tbe Bell case, supra: “Tbe plaintiffs contend tbat tbis is a counterclaim, wbicb it was optional witb them to plead. It seems to us tbat while tbe damage now sued for, if valid, would be a counterclaim, tbe foundation for tbem is taken away by tbe adjudication in tbe other action tbat tbe defendant bad performed its contract.”