Thresher v. Clark

RICHARDS, J.

This action was brought to recover the sum of ten thousand dollars as liquidated damages for a breach of certain restrictive building covenants contained in a contract for the sale of a building lot, forming part of a tract of land known as Westmoreland Place, situated in the city of Los Angeles, California.

[519]

The facts are fully stated in the case of

Miles

v.

Clark,

44 Cal. App. 539, [187 Pac. 167].

In that case plaintiffs herein were interveners, and they there sought and obtained the specific performance of the contract for a breach of which they are in this action seeking damages. This action was brought after the Miles suit was instituted. Upon its institution the defendants herein filed an amended answer in the Miles case, in which they set up the contract here sued upon, and pleaded as a separate defense to the complaint in intervention that as the present plaintiffs had brought this action they had thereby elected to sue for damages, and had no right to seek the relief asked by their complaint in intervention in the Miles case, viz., specific enforcement of that contract. Plaintiffs herein disposed of that defense by obtaining a finding from the court in that case that they had elected to pursue the remedies prayed for by them in their complaint in intervention in preference to any other remedies to which they might have been entitled in the premises.

In the case at bar the findings of the trial court are: (1) That none of the allegations of the plaintiffs’ complaint are true; (2) that by reason of the pendency of the action of

Miles

v.

Clark,

and by reason of the findings therein, ever since the entry of said judgment the plaintiffs in this action are barred from further proceedings herein upon the cause of action for liquidated damages set out in their complaint.

Respondents urge that the judgment in this case should be affirmed: