Zettle v. Gillmeister

LANGDON, P. J.

The plaintiffs commenced an action in ejectment against the defendant alleging that she had breached her contract with them by which she was to purchase certain real property in Santa Clara County, Cali

[670]

fornia, and that she had forfeited her right to its possession. She denied the breach of the contract and pleaded that she had tendered to the plaintiffs the amount due thereunder. The difficulty had arisen, it seems, because of different interpretations placed upon the contract by the parties.

Defendant also alleged by way of cross-complaint that the contract under which she had purchased the land was induced by fraudulent representations on the part of the plaintiffs regarding the productivity of the land and the water supply thereon and that by relying upon such representations she had been damaged in the sum of $36,000, for which amount she asked judgment. The jury brought in a verdict for the defendant in the action in ejectment. The court refused to hear evidence upon the cross-complaint and no issue thereon was submitted to the jury. Defendant appeals from the judgment because it fails to grant her any relief upon her cross-complaint.

[1]

Whether defendant’s pleading be regarded as a counterclaim or a cross-complaint is immaterial. Its justification in the present action will depend upon whether or not it arises out of the same transaction as set forth in the complaint or is connected with the subject of the action set forth in the complaint, or relates to or depends upon the contract or transaction upon which the action is brought or affects the property to which the action relates. (Code Civ. Proc., secs. 438 and 442.)

Plaintiffs’ action in ejectment was merely a possessory action; it did not involve the land itself or the title thereto.

(Porter

v.

Garrissino,

51 Cal. 559;

Payne

v.