Moklofsky v. Moklofsky

WARD, J. This is a judgment roll appeal. Defendant and cross-complainant appeals from the “judgment in declaratory relief” in favor of plaintiffs and from the denial of any affirmative relief on defendant’s cross-complaint, the allegations of which are in the nature of a complaint for rescission.

The complaint alleges a cause of action by plaintiffs for (1) specific performance and (2) declaratory relief. The case was previously tried and appealed and the cause remanded for a new trial. (Moklofsky v. Moklofsky, 79 Cal.App.2d 259 [179 P.2d 628]; petition for hearing by Supreme Court denied.) In the former appeal the same appellant as in the present appeal attacked the declaratory part of the judgment on the ground that a declaratory judgment (Code Civ. Proc., § 1060) may not be based on an oral contract or on disputed questions of fact. After reviewing several cases previously cited it was held that this point could not be sustained.

The main point relative to “cause of action” considered in the previous appeal covered plaintiffs’ allegations and the prayer for specific performance. In this connection the court said: “Adverting to the principal questions: the respondents brought this suit seeking specific performance at a time when they had not ‘fully and fairly performed’ (Civ. Code, § 3392). That is manifest from the language of the decree which makes the delivery of the deed conditional on the building of the stairway. The rights and duties of the parties must be measured and tested by the situation presented at the time of trial, and when this case was tried the respondents simply had not fully performed (see Wakeham v. Barker, 82 Cal. 46, 49 [22 P. 1131], supra). What the situation will be when the case is retried cannot be anticipated herein. ’ ’

On this appeal defendant admits that the present judgment denying specific performance may be supported on several grounds, namely, lack of mutuality of remedy, impossibility of the supervision of the contract, inadequacy of consideration, and adds “unfairness to the mother.” Irrespective of defendant’s admissions, unless the pleadings as [587]they appeared in the first trial had been amended, or a material change was made in the presentation of evidence, the decision on the first appeal is the law of the case on the subject of specific performance. No change was made in the pleadings and defendant in the present opening brief agrees that “the facts will be taken as stated in the prior opinion and findings of fact in this case.”