Pittler v. Bank of America National Trust & Savings Ass'n

STURTEVANT, J.

The Bank of America commenced an action in unlawful detainer against Lillian Pittler. The complaint was in the ordinary form. She answered the complaint and in her answer she pleaded many denials and set forth certain new matter as an equitable defense. She also commenced an action in specific performance and prayed that a conveyance of the property in controversy be ordered made to her. That complaint the Bank of America answered by pleading many denials. Later, on the motion of the Bank of America, the parties stipulated that the latter action be consolidated and tried with the former action. On March 13, 1934, the trial court made an order on the motion of the Bank of America that the equitable defense raised by the answer in the action first mentioned be tried by the court and that the issues at law be tried before a jury. The equitable defense so pleaded in the first action was, in legal effect, the same as the cause of action pleaded in the complaint in the second action, and was as follows:

“In this regard defendant alleges that on or about the 1st day of August, 1932, plaintiff and defendant entered into a certain oral contract and agreement wherein and whereby, and under the terms of which, plaintiff promised and agreed to transfer and convey the legal title to the property described and referred to in said complaint to the defendant, the description of the property referred to, which is situated in the City and County of San Francisco, State of California, is as follows: (describing property).

“On or about said 1st day of August, 1932, and pursuant to said agreement, defendant, with the consent and approval of the plaintiff, went into possession of the property herein-above described and referred to, as the purchaser thereof,

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and ever since has been and now is in possession of said property, pursuant to and in accordance with the terms of the said agreement of sale between plaintiff and defendant. Defendant has performed all of the terms and conditions of said contract and agreement on her part to be performed, and has done and performed all other things incumbent upon her to do and perform under the terms thereof, and defendant is ready, able and willing to continue to perform and carry out the terms and conditions of said agreement, and to do the things incumbent upon her to be done under the terms thereof.