Haines v. Pigott

DRAPER, J.

This is an action to remove a cloud on title to real property and to quiet plaintiffs’ title. Plaintiffs-respondents move to dismiss defendants’ appeal upon the ground that the issues have been determined against defendants by a judgment which has become final in another action.

The instant action was commenced in the Superior Court, County of San Mateo, by complaint filed March 11, 1957. The cloud sought to be removed was a recorded agreement dated December 2, 1955, between plaintiffs and defendant husband. By this contract, plaintiffs agreed to convey described land to defendant, and he agreed to construct a residence thereon, which was to be sold and the profits divided as agreed. By cross-complaint, defendants alleged performance of the agreement by them and breach by plaintiffs, and prayed for specific performance, damages, an accounting of profits, and judgment for the net amount due to defendants. The San Mateo court found that plaintiffs had performed the agreement fully, that defendant Robert Pigott had breached by failing to complete the building, and that plaintiffs had completed the building and sold it. The profits were computed. Judgment, rendered July 22, 1958, was that plaintiffs have decree quieting title upon payment to defendants of half the profits, and that defendants take nothing by their cross-complaint. Upon denial of defendants’ motion for new trial, they filed timely notice of appeal.

On September 25, 1957, after commencement of the San

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Mateo court action, plaintiffs filed suit against the same defendants in the municipal court, San Francisco, on a promissory note. Defendants cross-complained, setting up the agreement of December

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1955, and alleging that the note was a part of the same transaction. That cross-complaint set up the same causes of action alleged in the cross-complaint of the same defendants in the case at bar. The action was transferred to the superior court, San Francisco, which by findings and conclusion filed July 14, 1958, determined that plaintiffs had not breached the agreement, that defendants had not fully performed the contract on their part, found the allegations of the complaint to be true and the principal allegations of the cross-complaint to be untrue, and determined that defendants were entitled to an offset in the amount of half the profits under the agreement, which were computed. Judgment in favor of plaintiffs for the principal amount of the note, less this offset, was entered July 15, 1958, seven days before entry of judgment in the San Mateo action. The facts concerning the San Francisco action are established by certified copies of the pleadings, findings and judgment, all filed with plaintiffs’ motion to dismiss this appeal.