Gaskill v. Wallace

MARKS, J.

This is an action to recover an unpaid portion of the purchase price of property. Under an executory sales contract plaintiffs agreed to sell to defendant land in Kern County. Judgment was rendered for defendant. Plaintiffs’ motion for new trial was granted “for the reason that the decision is against the law”. Defendant has appealed from this order.

The sole defense interposed is that of

res judicata.

The trial judge found in favor of this defense and rendered judgment for defendant. The motion for new trial was heard and

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granted by another judge. The sole question argued by counsel is whether the defense of

res judicata

was established and the judgment based upon it properly rendered. We will confine ourselves to that question.

Some time prior to July 1, 1931, plaintiffs entered into a parol contract with defendant for the sale of the Kern County land to him. This contract was reduced to writing on July 1, 1931. Among other things it provided that Wallace might employ Percy D. Gaskill to superintend the construction of a duck club and preserve on the property. A payment of $5,000 on the purchase price fell due on July 1, 1932.

Under date of July 25, 1932, plaintiffs notified defendant that he was in default under his contract and that unless he remedied such default within three days they would terminate the contract. Under date of July 29, 1932, they served notice of termination. Gaskill was then residing on the property and thereafter excluded Wallace therefrom.

In August, 1932, Wallace started suit against plaintiffs for an accounting and for possession of the land. He pleaded the contract of sale in detail. He alleged that he had employed Gaskill to superintend the construction of the duck club and preserve; that Gaskill went into possession of the property for him and as his agent proceeded to improve it; that he had paid Gaskill $16,050 on account of the purchase price and on account of the cost of the improvements; that he had expended an additional $5,725.49 on improvements and furnishings of the property; that Gaskill had failed to account for the $16,050 paid him by Wallace and that Wallace had no knowledge of how much of that sum had been applied on the purchase price.