Empire Investment Co. v. Mort.

MELVIN, J.

This action greatly resembles the one which was the subject of the appeals in

Empire Investment Co.

v.

Mort,

169 Cal. 732, [147 Pac. 960]. The same parties are involved in the controversy and the same contract which was there under consideration is important in this suit. In this as in that case the Empire Investment Company is suing in ejectment for possession of the same land which that corporation sought to retake in the earlier litigation. This appeal is from a judgment adverse to plaintiff.

The other appeals were pending and undetermined when the day arrived which was specified in the contract of sale for the payment of the second installment on the purchase price. This sum not having been paid, the Empire Investment Company again brought suit in ejectment and for damages. Defendants answered, interposing equitable defenses, setting up their alleged rights under the contract of sale, and also interposed a plea in abatement based upon the pendency of the other action.

When the dase was called for trial plaintiff demanded a hearing by the court upon the plea in abatement. It was held and the court determined the question presented by that defense adversely to the defendants. No serious contention that error was thus committed by the court is made on behalf of defendants, and we will therefore discuss the other alleged errors without further reference to this one.

The complaint was a simple pleading in ejectment and prayed damages for the unlawful retention by defendants of the property of plaintiff. By their answer defendants presented as an exhibit the same contract which was discussed in the opinion on the former appeal. The allegations of the complaint were traversed in the usual manner. As a separate defense the existence of the written agreement was alleged and pleaded by reference to the attached exhibit; and defendants averred further:

“That said defendants have kept and performed each and all of the terms of said written contract except when prevented by said plaintiff from the performance thereof;

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