Braye v. Jones

NOURSE, P. J.

Braye and Saccone, who both had bought lots of real property from appellants, brought separate damage actions against them after a deed of trust signed by appellants in favor of respondent Henshaw had been foreclosed and the sale had included the lots the plaintiffs had purchased. In both actions appellants filed a cross-complaint against the respondents in which they alleged among other things that respondent Henshaw in an agreement of December 19, 1947, had undertaken to effect upon payment of $100 a partial reconveyance from the lien of said deed of trust of the property sold, which undertaking had been orally reaffirmed from time to time; that appellants had tendered the $100 but that respondent had refused to release said property so that the property had been sold, as the result of which appellants suffered special damages as claimed by the plaintiffs in the original actions and general damages. Respondent Henshaw’s answers to the cross-complaints denied that he had agreed to continue to release lots in the tract after default in the payments secured by the deed of trust and among other things alleged such default, recording of a notice of breach and a trustee’s sale. As a special defense Henshaw alleged that a judgment in a prior action,

Jones

v.

Henshaw,

entered on December 29, 1950, was res judicata of all the issues raised by appellants’ cross-complaints. This special defense was tried separately under section 597, Code of Civil Procedure and upheld by the court. The sole question presented by cross-complainants’ appeals, consolidated by order of this court, is whether the judgment of December 29, 1950, which became final when an appeal taken from it by plaintiff was dismissed for lack of prosecution, was correctly considered res judicata as to the issues of the cross-actions here involved.

A detailed consideration of the issues in the prior action is required. The first amended complaint in said action, the transcripts of which are in evidence, consists of two counts. The first count alleged in substance that the Joneses

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in October, 1946, bought from the Henshaws a tract of land for $28,000, payable in installments and secured by deed of trust; that the trustees under said deed of trust had a notice of default recorded and a notice of sale published. That such was done without right because defendants Henshaw had promised to clear the title of all exceptions or credit plaintiffs with $2,500, which had not been done; that the tract had not been properly surveyed and mapped as promised, entitling plaintiffs to a credit of $876 and that because of the failure to clear exceptions additional credits in the amount of $4,316.02 were due; that therefore instead of the $18,716.67 claimed as due by defendants only $11,023.69 was due which sum had been tendered to the defendants, but which they had refused to accept. The second count states that in an agreement attached to the complaint defendants agreed to release from the lien of said deed of trust such lots as plaintiffs might request against payment of a sum according to a schedule contained in the agreement; that plaintiffs requested the release of certain lots requiring according to schedule a payment of $1,000; that the money entitling plaintiffs to reconveyance had been deposited with defendants; that defendants refused to reconvey; that if defendants should be unable to reeonvey, plaintiffs, who had contracted to resell, would be damaged in the amount of $2,000. The prayer was in substance for an injunction pendente lite against foreclosure, which was granted, a determination of the validity of the deed of trust as lien on any part of the tract, a determination of the correct amounts due under the deed of trust, for specific performance of the agreement to reconvey and in case of failure to reconvey damages in the amount of $2,000.