Jacob v. Carter

VANCLIEF, C. Action of ejectment to recover a tract of land in Tulare county. The complaint alleges, generally, the plaintiff’s ownership and right of possession, and that defendant was in possession, and refused to surrender possession to plaintiff on demand therefor. The answer denies plaintiff’s title and his right to possession, and avers defendant’s right of possession. The defendant also filed a cross-complaint, in which he alleged that on October 18, 1888, the plaintiff and defendant entered into a written agreement, whereby plaintiff agreed to sell, and the defendant to purchase, the land in controversy, at the price of $2,500, upon which $250 was paid and credited at the date of the contract, and whereby it was agreed that the balance of the principal should be payable on or before October 18, 1893, with interest at eight per cent per annum, payable annually in advance on or before October 18th of each year, and, if not punctually so paid, then the said party of the first part “shall have the right to enter upon and take possession of said premises, with all the improvements thereon”; that from the date of said agreement until May 4, 1890, the defendant was in the employ of plaintiff as general agent at a salary of $50 per month, and during that period paid and expended money for the plaintiff, and boarded his employees, for which plaintiff agreed to compensate him, over and above said salary; and that it was understood and agreed, at the date of said written agreement, that plaintiff' should credit said salary and all other indebtedness of plaintiff to defendant for money paid and for board of employees which might accrue, as payments on the purchase price of said land; and that on May 4, 1890, plaintiff and defendant had a settlement, upon which it was found and agreed that the land had been fully paid for, and that plaintiff would make defendant a deed therefor, as soon as he received a deed for the same from the Southern Pacific Railroad Company, which, it is averred, he has received since the date of said settlement. Upon these facts the defendant, by his cross-[545]complaint, seeks to enforce a conveyance of the land from plaintiff to himself. Plaintiff, in answer to the cross-complaint, denied all the avermerits thereof, except that he had received a deed from the railroad company since the date of the alleged settlement. By agreement of the parties all the issues raised by the complaint and answer thereto and by the cross-complaint and answer thereto were tried together by the court and a jury, it being agreed that the jury should render a general verdict upon the issues raised by the complaint and answer thereto, and a special verdict upon such of the issues raised by the cross-complaint and answer thereto as might be submitted by the court. The verdict of the jury, both on the general issue and on the special issues submitted, was in favor of the defendant. The court adopted the verdict on the special issues, and made some additional findings upon issues in the cross-suit, and rendered judgment in favor of defendant upon the whole case, including a decree that plaintiff convey the land in question to defendant. The plaintiff moved for a new trial, which was denied as to the issues arising on plaintiff’s complaint and the answer thereto, but granted upon the issues in the cross-suit. The plaintiff appeals from the judgment, and from an order denying his motion for new trial upon the issues raised by his complaint and the answer thereto.