Kittle Manufacturing Co. v. Speer

CRAIL, J.

The sole contention of appellant is that the trial court erred in applying the provisions of section 439 of the Code of Civil Procedure as a bar to his recovery. Said section reads as follows: “If the defendant omits to set up a counterclaim upon a cause arising out o£ the transaction set forth in the complaint as the foundation of the plaintiff’s claim, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor.” The term “transaction” employed in this section embraces not only a commercial negotiation or contract but also whatever may be done by one person which affects another’s rights and out of which a cause of action may arise.

(Colla

v.

U-Drive

Autos,

Inc.,

111 Cal. App. (Supp.) 784 [294 Pac. 378].)

Appellant was the plaintiff in the trial court and commenced this action against respondent to" recover, among other items, the sum of $3,270.19 (as more fully set out in a bill of particulars) paid by appellant to respondent over a period of several months by way of advancements for commissions on sales of certain orchard heaters by virtue of a written contract between the "parties. The defendant pleaded the provisions of said section as a bar to appellant’s recovery alleging that appellant had failed to set up said items as a counterclaim in a prior action brought by respondent against appellant for commissions under the same contract.

[150]

The trial court found and decided that appellant had paid respondent as advancements upon commissions the said sum of $3,270.19, but that in a prior action respondent had sued appellant to reform the said contract and to recover a balance alleged to be. due for commissions and for an accounting and for sums to be found due; that said cause was tried and judgment was entered for the reformation of the contract and for the sum of $6,934.80 as the balance due for commissions; that the claim for the items comprising the $3,270.19 in the pending action arose out of the transactions set forth in the complaint in the prior action and was not pleaded nor proved nor offered to be proved although existing at that time and was now barred by the provisions of said section.