Takekawa v. Hole

ALLEN, P. J.

The action was one for specific performance. The judgment and decree sought to be reversed in this proceeding is based upon a certain written agreement for the purchase and sale of described real property, together with certain executed oral modifications thereof agreed to between the parties. These oral modifications provided for the extension of certain deferred payments specified in the

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written agreement, a sufficient consideration therefor being shown. The trial court found that these oral modifications and the obligations thereby imposed upon plaintiff had been fully performed, and found all other facts necessary to entitle plaintiff to the relief demanded. A decree was accordingly entered in plaintiff’s favor, from which judgment, and from an order denying a new trial, defendant appeals.

Defendant in his answer pleaded in bar a former judgment rendered in defendant’s favor by a court of competent jurisdiction in an action wherein specific performance was sought by plaintiff against defendant on account of and based upon the terms of the original written agreement without modifications. Upon the trial defendant tendered in evidence the judgment-roll and record of such former adjudication. The court sustained an objection to the introduction of this record and defendant assigns as error such action of the court, and the same is practically the only question presented upon this appeal.

Appellant contends that the complaint in the original action was sufficient and under which all competent evidence in the second action was admissible. We think there is no merit in this contention. By the terms of the original written agreement set out in the first action, it affirmatively appeared by the complaint that plaintiff was in default as to deferred payments stipulated in the agreement. This affirmatively appearing, the bare allegation that he had performed all of the obligations imposed upon him by the agreement may be disregarded, the contrary being made to appear by other allegations of the complaint. The complaint did not state a cause of action warranting the equitable relief sought, and no evidence in that action could have been received under the allegations of the complaint with reference to the modifications and extensions of time. The rule as to what may be deemed adjudged in a former judgment is declared by section 1911 of the Code of Civil Procedure: “That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. ” It is settled law that when a judgment of any character is effectually pleaded in bar, it must appear that the parties are the same and the subject matter the same. Considering the allega