Annesley v. Victurino

THE COURT.

This is an appeal from a judgment entered upon an order striking out plaintiff’s second amended complaint.

In the original complaint it was alleged that on January 9, 1906, the defendants made a contract with plaintiff’s assignor, Edgar L. Wheeler, wherein they agreed to sell to Wheeler the real property described in the complaint. The complaint was defective, and a demurrer thereto having been sustained the plaintiff filed an amended complaint, in which he prayed that his title to the property covered by the contract referred to be quieted. This complaint also was obviously defective, and, upon a demurrer thereto being sustained, the plaintiff in due time filed a second amended complaint, the allegations and prayer for relief of which make the action one for specific performance. Upon motion this complaint was stricken from the files on the ground that it embodied a new cause of action.

This appeal is not before us upon an order sustaining a demurrer to the second amended complaint, and hence no attention will be paid in this opinion to any suggested defective allegation thereof. We think the court erred in striking out this second amended complaint. It is clear from a consideration of the three pleadings filed by the plaintiff that his asserted cause of action is based upon an interest in the property in question created by the provisions of the above-mentioned contract, the terms of which are set forth in full in each of the complaints, and which constitutes the foundation of the action attempted to be stated. The subject of the controversy, or the cause of action, it thus appears, is the same in each pleading. The amendments only stated the facts in different forms to accord with the remedy to which the plaintiff conceived himself to be entitled, and did not change the cause of action.

(Born

v.

Castle, 22

Cal. App. 282, [134 Pac. 347];

Union Lumber Co.

v.

J.

W.

Schouten & Co.,

25 Cal. App. 80, [142 Pac. 910].)

Judgment reversed.

[422]