224 P. 440 | Utah | 1924
This is an action for the specific performance of an oral contract for the sale and conveyance of real property.
It is alleged that George Baum and Sarah E. Baum, both since deceased, on the 15th day of September, 1912, sold and agreed to convey to plaintiff the premises described in the complaint upon certain terms and conditions by plaintiff to be performed; that plaintiff had performed and complied with all the terms and conditions of the contract on his part; and that possession of the premises had been delivered to him pursuant to the contract.
The defendants are the administrators, respectively, of the estates of George Baum, deceased, and Sarah E. Baum, deceased.
The prayer of the complaint is that defendants, as administrators, be required to convey the premises to the plaintiff.
The answer set up an alleged former adjudication as a bar to the plaintiff’s action, which former adjudication, as alleged in the answer, was admitted by the reply of the plaintiff.
Upon motion of defendants the trial court granted judgment on the pleadings for defendants and dismissed the action. The plaintiff appeals.
The present action assails the title of defendants (plaintiffs in the former action) by virtue of the oral agreement set forth. The cause of action pleaded in the present case existed at the time of the former adjudication. The plaintiff claims
Comp. Laws Utah 1917, § 6576, defines a “counterclaim” (so far as material here) to be:
“A cause of action arising out of the transaction set-forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.”
Section 6577 provides that if the defendant omit to set up such a counterclaim neither he nor his assignee can after-wards maintain action against the plaintiff therefor.
The plaintiff’s claim to the property involved, as set up on the present action, existed in his favor at the time of the former adjudication, and it was directly connected with the title to the property in controversy, which was the subject of that action. If it had been pleaded and proved in the former action, it would have defeated the claim of the plaintiffs, and entitled'him to the same relief which he now prays for as plaintiff in the present action.
We think the provisions of the statute quoted are conclusive of the matter in dispute and preclude the plaintiff from now asserting the cause of action set up in his complaint. It follows that the judgment on the pleadings was correct.
Judgment affirmed.