Sunset Scavenger Corp. v. Oddou

GRAY, J.,

pro

tem.

Plaintiff sued for declaratory relief under the provisions of section 1060 of the Code of Civil Procedure but was denied such relief under the provisions of section 1061 of the same code. This appeal questions the propriety of the court’s refusal to grant the requested relief. The issues and facts are few and simple as will appear from the following synopsis of the pleadings and evidence.

The complaint alleged that defendant was injured in a collision between a street car and an auto-truck owned and operated by plaintiff; that, in consideration of $320.75 paid, defendant executed the covenant not to sue, attached as an exhibit; that such covenant remains in full force and effect; that defendant had served upon plaintiff a notice of rescission and has ever since claimed that such covenant has been rescinded; that the grounds of rescission were mistake, undue influence, duress, menace and fraud, but that such covenant was entered into without the existence of any of such grounds; and that plaintiff desires a declaration of its rights under the covenant and brings the action for such purpose. The prayer asked a judgment declaring plaintiff’s rights under the covenant, establishing its validity and enjoining defendant from asserting its invalidity. The answer merely denied that the covenant was ever valid or of any force or effect or that the grounds of rescission were limited to those stated in the complaint. By way of an affirmative defense, it alleged that previously defendant had filed a complaint to re

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cover damages for injuries sustained in the collision; that previously plaintiff had filed an answer thereto; that plaintiff, although it had an opportunity so to do, had failed to plead the covenant as a defense; that the declaration prayed was not necessary or proper; and that the covenant constituted a defense and counterclaim, existing at the time of filing its answer, which was waived by failure to plead.

•At the trial, plaintiff introduced into evidence the covenant not to sue, and the complaint and answer in the negligence case, referred to in the present answer, and then rested. Defendant offered ’no evidence. The complaint for damages charged that the present plaintiff and its employee so negligently operated its auto-truck as to cause it to collide with a street car upon which the present defendant was riding as a passenger, thereby inflicting upon her specified injuries to her damage in stated sums. Plaintiff’s answer thereto denied negligence, injuries and damages and affirmatively pleaded contributory negligence. The court found that defendant had been injured in the collision; that for the consideration of $320.75 she had executed the covenant pleaded; that she had served notice of rescission, set forth