Opinion
Hearing Granted by Supreme Court April 19, 1928.
Appeal from Superior Court, Los Angeles County; Paul J. McCormick, Judge.
[Copyrighted Material Omitted] Action by Felice Campanella against Victor Campanella. Judgment for plaintiff, and he appealed from an order granting a new trial. Order reversed. COUNSEL
Canepa & Castruccio and W. W. Wallace, all of Los Angeles, for appellant.
H. A. Massey and George S. Hupp, both of Los Angeles, for respondent.
OPINION
HAZLETT, Justice pro tem.
This is an action in damages for deceit. Judgment was entered against defendant for $3,958.33 and costs on the verdict of a jury. Defendant moved for a new trial, his motion was granted, and plaintiff appealed.
In his second amended complaint plaintiff alleged that he and defendant and one Giovanni Gai were the owners of 167½ acres of land as tenants in common, each owning a one-third interest; that they had been partners in manufacturing wine; that defendant was the managing partner and conducted most of the business of the partnership; that plaintiff and defendant were cousins; that the partners agreed to sell the land and that defendant should procure a purchaser; that defendant represented to plaintiff that he had received an offer of $29,312.50 for the land and that he could obtain no higher offer; that plaintiff reposed great confidence and trust in defendant, and believed defendant, and believed that the land was worth no more than the amount of the alleged offer, which confidence and belief were known to defendant; that so believing, and at defendant’s solicitation, plaintiff conveyed his interest in the land to defendant for $10,000; that the representations were false and were made to deceive plaintiff, the facts being that before making them, defendant had an offer of $41,875 for the land and had agreed to sell it for that sum; that the land was worth $54,437.50; and that an accounting of the affairs of the partnership was had before plaintiff learned that the representations were false; and plaintiff prayed for judgment in the sum of $8,145 as the difference between the amount received by plaintiff from defendant and the value of the land, and for interest, costs, $3,000 exemplary damages, and general relief.
Defendant’s answer denied that the three owners had agreed to sell the land; denied the alleged false representations and lack of knowledge on the part of plaintiff, and that defendant had an offer of $41,875 or had agreed to sell the land before plaintiff conveyed his interest to defendant, and alleged that plaintiff then knew of every offer defendant had obtained; denied that the land was worth more than $30,000, and alleged that before this action was commenced another action had been brought by plaintiff against defendant and Gai, wherein plaintiff had alleged the same matters pleaded by him in this action, and wherein the pleadings had raised the same issues raised in this action, and that after a trial was had therein, judgment on the merits was rendered against plaintiff, which judgment estopped plaintiff from maintaining this action.
In an amendment to his answer defendant alleged that by the prior action plaintiff elected to rescind his conveyance to defendant, and that thereby plaintiff was estopped and precluded from maintaining this action or to recover damages in this action.
At the trial defendant offered to introduce in evidence the judgment roll in the prior action, which offered evidence was objected to by plaintiff on the ground that it was incompetent, irrelevant, and immaterial, and the objection was sustained.
Defendant moved for a new trial on the minutes of the court on the grounds that excessive damages were given under the influence of passion or prejudice; that the evidence was insufficient to justify the verdict; that the verdict was against the law, and that error in law occurred at the trial and was excepted to. On this motion the court made its order granting a new trial and setting aside the verdict and judgment.
This appeal was taken from the order.
In support of the order defendant advances the propositions that (1) the judgment in the prior action was res adjudicata of the matters involved in this action, and is a bar to this action; (2) that in the prior action plaintiff elected to rescind and was thereby precluded from maintaining this action; and (3) that the jury, in awarding the damages, was under the influence of passion and prejudice.
The complaint in the prior action, which named Gai and defendant, Campanella, as defendants, alleged substantially the same matters pleaded by plaintiff in his second amended complaint in this action, and also that plaintiff had offered to return to defendant the money paid him by defendant for plaintiff’s conveyance, and at the same time demanded a reconveyance from defendant, which demand was refused by defendant, and plaintiff prayed for cancellation of the conveyance, for a judgment requiring defendant to reconvey, and for general relief.
Gai did not attack this complaint, nor did he plead to it. Defendant, Campanella, demurred to it on the sole ground that it did not state a cause of action. His demurrer was sustained and plaintiff was permitted to amend.
There was an amended complaint predicated in damages, which omitted Gai as a party, and plaintiff alleged therein substantially the same matters pleaded in the original complaint, that plaintiff, as such partner, owned a one-third interest in the land of the partnership, and that he was damaged in the sum of $4,175, and he prayed for judgment against defendant, Campanella, in that sum, for $15,000 exemplary damages, for costs, and general relief.
Defendant, Campanella, answered the amended complaint denying that the partnership owned the land, admitted that he acted as agent for the other members of the partnership, but only with such powers as existed by reason of his membership in the partnership, alleging that the land was held as tenants in common by the partners, and denying the alleged false representations, the alleged sale or agreement to sell, the alleged offer of plaintiff to return the moneys paid for plaintiff’s conveyance, and demand for a reconveyance, or that plaintiff suffered any damage.
No other attack was made on the amended complaint; but thereafter plaintiff filed his second amended complaint alleging substantially the same matters pleaded in the amended complaint, except that he pleaded that defendant sold the lands for $41,875, that the partnership affairs had never been settled and that large sums of money were due the partnership, and praying that the partnership be dissolved, that an accounting be had, that plaintiff be adjudged the owner of one-third of the partnership assets, that a receiver be appointed, that in the event plaintiff’s conveyance to defendant cannot be canceled, that plaintiff "shall receive the difference between $175 per acre [the basis upon which plaintiff conveyed to defendant] and $250 per acre [the price at which defendant had sold the land] for his one-third interest" in the land, that the partnership’s assets be sold and the net proceeds be divided, and for general relief.
Defendant demurred to this second amended complaint. This demurrer was ordered off calendar, and on the day the order was made, the court made its judgment as follows:
"This matter coming on to be heard the 5th day of January, 1921, upon a motion to strike the second amended complaint from the files, Messrs. Canepa & Gastruccio appearing for the plaintiff, and H. A. Massey and Geo. S. Hupp, Esq., appearing for the defendants, and the court having heard the arguments:
"Now, therefore, it is hereby ordered, adjudged, and decreed that the second amended complaint be striken from the files and the said action be and the same is hereby dismissed, and that the defendants have and recover from plaintiff their costs herein expended, to wit, $ [written in ink] $58.15.
"Done in open court this 8th day of January, 1921.
Charles S. Burnell,
"Judge of the Superior Court."
Thereafter, the court, without any showing in the judgment roll therefor except the recitals in the judgment, made another judgment as follows:
"This cause coming on to be heard the 18th day of January, 1921, upon a motion to strike the second amended complaint from the files, Messrs. Canepa & Castruccio and Wallace appearing for plaintiff, and Messrs. H. A. Massey and Geo. S. Hupp appearing for the defendants, and the court having heard the arguments:
"Now, therefore, it is hereby ordered, adjudged, and decreed that the second amended complaint be stricken from the files without leave to amend, and that the said action be and the same is hereby dismissed, and that the defendants, and each of them, have and recover from the plaintiff their costs herein expended, to wit, $31.50.
"Done in open court this 24th day of January, 1921.
Charles S. Burnell,
"Judge of the Superior Court."
There were no findings of facts, and the judgment roll does not disclose upon what grounds the second amended complaint was stricken, nor for what reason the action was dismissed. No motion for dismissal of the action is shown or otherwise indicated by the record.
Defendant contends that the judgments of dismissal in the prior action were res adjudicata of the matters involved in this action, and barred and estopped plaintiff from maintaining this action.
Plaintiff contends that as neither of the judgments purports to have been made on the merits of the cause, neither is a bar to the present action.
The two judgments in the prior action are essentially the same in form and substance, and for the purposes of this opinion they will be referred to as "the judgment."
Plaintiff’s objections to the introduction in evidence of the judgment roll were in the nature of a collateral attack, and for that reason the court was limited to the judgment roll itself in determining whether the judgment was the bar claimed. 15 Cal.Jur. 46, and cases cited.
No question is raised in appellant’s brief as to the validity of the judgment, but respondent argues at length the proposition that the judgment is not void.
The presumption is that the judgment is valid, and facts to sustain it will be presumed to have existed, and, unless the record shows that the court did not have jurisdiction to render it, the judgment is not void on its face. In re Eichhoff, 101 Cal. 605, 36 P. 11; Canadian, etc., v. Clarita, etc., 104 Cal. 672, at p. 674, 74 P. 301; Hogan v. Superior Court, 74 Cal.App. 704, at p. 708, 241 P. 584; and Williams v. Blue Bird Laundry Co. (Cal.App.) 259 P. 484. The judgment is not void on its face.
The judgment roll shows that the issues were joined in the former action by the amended complaint and the answer thereto, and that plaintiff thereafter voluntarily filed his second amended complaint, which was stricken on motion of defendant as shown only by the judgment, and also shows that the action was not tried on the facts, but there is nothing in the judgment roll to indicate that the judgment was on the merits, unless in and of itself the judgment imports a final determination of the matters of the controversy. The cause of action in the former action and in this action were substantially the same.
There is a distinction between a judgment operating as a bar against a second action upon the same cause of action and a judgment operating by way of estoppel in a later action upon a different cause of action, or as conclusive evidence of some fact or issue common to different causes of action determined in the first action. Horton v. Goodenough, 184 Cal. 451, 461, 194 P. 34. Thus, as announced in Detwiler v. Clune, 77 Cal.App. 562, 575, 247 P. 264, 269:
"A former judgment may be conclusive evidence that no cause of action exists. *** It may be offered not as estoppel to proof of any fact, but as proof of the non-existence of a cause of action at all. Or. (2) treated from the standpoint of its use as a piece of evidence, it may be produced when specifically pleaded as an estoppel, *** as evidence of some material fact in the cause of action on trial, the truth of which both parties are estopped from denying."
See, also, Price v. Sixth Agricultural Ass’n (Cal. Sup.) 258 P. 387.
Section 1908, subd. 2, of the Code of Civil Procedure, provides that:
"*** The judgment or order is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest. ***"
And section 1911 of the same Code provides:
"That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto." (Italics ours.)
Our courts have uniformly held that unless it appears from the record of a judgment that it was given upon a consideration of the merits of the controversy, or if it affirmatively appears that the merits were not considered, it is not available as a bar or estoppel.
In Price v. Sixth District, etc., supra, the court said:
"When an issue has been litigated all inquiry respecting the same is foreclosed, not only as to matters heard but also as to matters [within the issues] that could have been heard in support of or in opposition thereto. *** ‘Even though the causes of action be different, if the second action involves a right, title or issue as to which the judgment in the first action is a conclusive adjudication, the estoppel so far as that right, title or issue is concerned must likewise extend to every matter which was or might have been urged to sustain or defeat the determination actually made.’ Freeman on Judgments (5th Ed.) § 677, p. 1432. To the same effect see Sullivan v. Triunfo Gold, etc., Min. Co., 39 Cal. 459."
The rules above announced relate to a prior and a subsequent action involving the same cause of action and the same parties.
In order that the above holding may not be given a narrower construction than intended, reference should be had to the rules laid down in the authorities cited in its support, and we should also consider the earlier and later decisions upon the subject, many of which are hereinafter cited.
In Freeman on Judgments, § 677, above referred to, the writer declared:
"Where the causes of action in the two actions are different, *** the estoppel does not extend to matters which might have been litigated in the first action, but is limited to those matters or issues common to both actions which were either expressly or by necessary implication adjudicated in the first."
However, Mr. Freeman, in section 678, p. 1433, of his work, defines a cause of action as:
"Every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the court [citing English cases]. But in determining whether the causes of action are the same for the purposes of an estoppel of a bar, it is necessary to consider their essential elements rather than the identity of the facts which may have been pleaded or proved as evidence of those elements. *** The facts which establish the existence of that right [a primary right] and its violation constitute the cause of action. ***"
Also, in section 687, Mr. Freeman says:
"The best and most invariable test as to whether a former judgment is a bar is to enquire whether the same evidence will sustain both the present and the former action" (citing many cases, including Maddux v. County Bank, 129 Cal. 665, 62 P. 264, 79 Am. St. Rep. 143).
See, also, sections 668, 689, 693, and 727 of the same work.
In Sullivan v. Triunfo Gold, etc., Co., 39 Cal. 459, 466, also cited in above case of Price v. Sixth District, etc., it appeared that the ultimate fact at issue was that determined in a prior action between the same parties, and that the actions involved the same cause of action, but plaintiff endeavored to show in the latter case probative facts, supporting the issue, different from those shown in the prior action, which different facts existed when the former action was commenced. The court held that the judgment in the former action was a bar to the latter action. See, also, Wehle v. Price (Cal. Sup.) 260 P. 878.
The expression that "a judgment is conclusive not only as to the subject-matter in controversy, but also as to every other matter that was or might have been litigated," although generally true, is not always applicable literally. "What is really meant by this expression is that a judgment is conclusive upon the issues tendered by the plaintiff’s complaint." Lang v. Lang, 182 Cal. 765, 768, 190 P. 181, 182. See, also, Hutchison v. Reclamation District (Cal.App.) 254 P. 606, and cases cited.
The general rules more fully stated are the following:
A judgment of a court of competent jurisdiction upon a material and relevant matter of fact or law, involved and actually and necessarily decided in one suit, whether or not then directly the point in issue, is conclusive as to that question in another suit between the same parties. Sullivan v. Triunfo Gold, etc., Co., 39 Cal. 459; Oakland v. Oakland Water Front Co., 118 Cal. 160, 220, 50 P. 277; Horton v. Goodenough, supra; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; and Freeman on Judgments, § 688.
To determine whether a prior judgment may be a bar or operate as an estoppel to a subsequent suit, the whole record may be examined, and if it appear that the judgment was on the merits of the matter involved in the second suit, the judgment may be set up as a bar or estoppel. The mere form of words in which the judgment is framed is not controlling. Hogeberg v. Ind. Acc. Com. (Cal. Sup.) 256 P. 413; Oakland v. Oakland Water Front Co., supra; Slaker v. McCormick-Saeltzer Co., 179 Cal. 387, 389, 177 P. 155.
However, before the plea of prior adjudication may be sustained it must appear either on the face of the record or be shown by extrinsic evidence that the precise question was raised and determined in the prior action. Horton v. Goodenough, supra; Heine Piano Co. v. Bloomer, 183 Cal. 398, 191 P. 900; Russell v. Place, supra; Oakland v. Oakland Water Front Co., supra, p. 220 (50 P. 277); Freeman on Judgments, § § 689, 727.
To prevent further litigation, the judgment should define the rights of the parties with certainty so that they may know what they are to do or not to do under its terms. They are entitled to a plain and explicit determination of their rights. If the judgment fails in that regard, it may result only in laying the foundation for future litigation. Omnes v. Crawford (Cal. Sup.) 262 P. 722, and cases cited; Freeman on Judgments, § 727; Loose v. Cooper, 141 Iowa, 377, 118 N.W. 406.
If several distinct matters were litigated and the judgment may have passed upon one or more of them, without indicating upon which it was rendered, the general rule is that the whole of the matters involved will be open to a new contention. For instance, the judgment may have been based upon a plea in abatement, or because the cause of action had not yet accrued, or because of some technical defect, or because of temporary disability of plaintiff to sue, or the like. Section 1908, subd. 2, and § 1911, Code Civ. Proc.; Gray v. Dougherty, 25 Cal. 266, 272; Heine Piano Co. v. Bloomer, supra, and cases cited; Oakland v. Oakland Water Front Co., supra, p. 221 (50 P. 277); Horton v. Goodenough, supra; Russell v. Place, supra; Taylor v. Darling, 22 Cal.App. 101, 133 P. 503; Wehle v. Price, supra. The judgment will not be a bar or an estoppel as to matters which might have been, but were not, litigated and determined. Linforth v. Montgomery, 195 Cal. 49, 56, 231 P. 735.
A judgment is not evidence of any matter which came incidentally or collaterally in question, or that may be inferred only by way of argument or construction. An estoppel cannot be created by mere argument. Certainty is an essential element of every estoppel, and unless it appear that the judgment necessarily involved a determination of the fact sought to be established in the second suit, the record will not constitute an estoppel. Beronio v. Ventura, etc., Lumber Co., 129 Cal. 232, 236, 61 P. 958, 79 Am. St. Rep. 118; Oakland v. Oakland Water Front Co., supra, pp. 224, 225 (50 P. 277); Freeman on Judgments, § 691; Coke on Littleton, 352b.
The onus of establishing a bar or an estoppel is cast upon him who evokes it. Sec tion 1981, Code Civ. Proc.; Oakland v. Oakland Water Front Co., supra, p. 221 (50 P. 277); Freeman on Judgments, § 768.
Our courts have held that when in an action for injunction, plaintiff procured the appointment of a receiver and subsequently dismissed the action, the judgment of dismissal was conclusive against the sureties on the receiver’s bond that his appointment was wrongful, and they became liable for damages resulting from the receivership; and that when a writ of injunction had issued and the action was voluntarily dismissed by plaintiff, the sureties on the injunction bond became liable for damages arising by reason of the injunction. Also, that when the defendant moved to have the injunction dissolved and plaintiff dismissed the action, the judgment of dismissal was an admission that plaintiff was unable to maintain his injunction and the dismissal had the same effect as a decision that he was not entitled to the injunction. Heim v. Mooney, 23 Cal.App. 233, 236. et seq., 137 P. 616, and cases therein reviewed.
It is error for the court to dismiss an action upon defendant’s motion therefor based on the ground that the complaint does not state a cause of action. Pacific Paving Co. v. Vizelich, 141 Cal. 4, 74 P. 352.
A judgment of dismissal of an action upon sustaining a demurrer to the complaint may be an adjudication on the merits when the demurrer goes to the merits and leave to amend is not requested, and, in such event, it is not error for the court to enter a judgment of dismissal of the action without granting such leave. Bell v. Bank of California, 153 Cal. 234, 244, 245, 94 P. 889. Under the provisions of section 582 of the Code of Civil Procedure, such judgment must be held to be on the merits. Amestoy Estate Co. v. Los Angeles, 5 Cal.App. 273, 90 P. 42; Los Angeles v. Mellus, 58 Cal. 16, 18.
An order sustaining a demurrer may be final if the demurrer goes to the merits of the action, or determines the whole merits of the case. Robinson v. Howard, 5 Cal. 429. A judgment on a demurrer is conclusive of everything necessarily determined by such judgment (Peterson v. Weissbein, 75 Cal. 174, 177, 16 P. 769); but a ruling sustaining a demurrer to a complaint does not preclude filing a different complaint showing a meritorious cause of action (Andersen v. Charles, 52 Cal.App. 290, 293, 198 P. 641).
A judgment of dismissal made pursuant to a stipulation of the parties therefor which provides that each party pay his own costs, the defendant being under no obligation to pay costs, is a judgment on the merits (Merritt v. Campbell, 47 Cal. 542, 547; McCord v. Martin, 47 Cal.App. 717, 726, 191 P. 89); but a general entry of dismissal of a suit pursuant to agreement of the parties is no evidence of intention to abandon the claim on which it is based, but rather of a purpose of preserving the right to bring a new suit if necessary (Laguna Drain. Dist. v. Martin Co., 5 Cal.App. 166, 172, 89 P. 993).
Where the trial court dismissed an action on its own motion without any request for the dismissal for either party, and the ground of dismissal did not appear in the record, the Supreme Court said that when the court acts in such a case "on its own motion it is highly desirable that it should state the ground upon which it facts. The failure to do so gives an appearance of arbitrary action." Loose v. Cooper, 141 Iowa, 377, 118 N.W. 406.
Freeman on Judgments (5th Ed.) § 732, states the classes of cases in which judgments of dismissal are not on the merits, as follows:
"1. Where the plaintiff fails for want of jurisdiction in the court to hear his complaint or to grant him relief. 2. Where he has misconceived his action. 3. Where he has not brought the proper parties before the court. 4. Where the decision was on demurrer, and the complaint in the second suit sets forth a cause of action in proper form. 5. Where the first suit was prematurely brought. 6. Where the matter in the first suit was ruled out as inadmissible under the pleadings."
Other causes for involuntary dismissals, mentioned in 9 California Jurisprudence, 518, are: Nonappearance of a party; failure to pay costs on change of venue; want of authority of attorney to bring the suit; plaintiff’s abandonment of the suit; failure to prosecute the suit; and delay in issuing or serving summons.
Sections 581, 581a, and 581b of the Code of Civil Procedure provide under what circumstances the plaintiff or the court may dismiss an action, and section 582 provides in effect that in all other cases judgment must be rendered on the merits.
The law relating to the effect of dismissals has been more liberally construed than a casual reading of those sections might imply.
In Oakland v. Oakland Water Front Co., supra, p. 224 (50 P. 277), the Supreme Court announced that section 582 is "the declaration of a rule of procedure, rather than a principle of law."
Generally, judgments merely of dismissal, whether voluntary or involuntary, are not on the merits and do not operate as a bar or estoppel in subsequent proceedings involving the same matters, unless it appears that the judgment necessarily involves those matters. Oakland v. Oakland Water Front Co., supra, p. 222 (50 P. 277); Hubbard v. Superior Court, 9 Cal.App. 166, 98 P. 394; Bell v. Solomons, 162 Cal. 105, 110, 121 P. 377; Johnston v. Baker, 167 Cal. 260, 263, 139 P. 86; 18 Cor. Jur. 1200; Freeman on Judgments, § 753.
When a case is dismissed without evidence having been offered, it is error to render judgment on the merits. There is nothing before the court on which to base any findings determinative of the issues. The absence of proof on either side could not involve a judicial determination of the merits of the controversy. Freedman v. Sirota, 109 A.D. 874, 96 N.Y.S. 812. See, also, Kruger v. Persons, 52 A.D. 50, 64 N.Y.S. 841. There must have been a right adjudicated or released in the first suit to constitute the judgment a bar or an estoppel. Haldeman v. United States, 91 U.S. 584, 23 L.Ed. 433; Rincon Water & Power Co. v. Anaheim Union Water Co. (C. C.) 115 F. 543, 549, et seq. (Welborn, Dist. J.).
If the record of a judgment of dismissal fails to show that the judgment was given upon a consideration of the merits of the controversy, it is not available as an estoppel. The fact that the judgment was made at the instance of the court gives it no greater weight than if it were merely a judgment of nonsuit. The dismissal for the reason that plaintiff has chosen the wrong forum or form of proceeding or remedy, or because of defects in the pleadings or parties, or for want of jurisdiction or because the suit was prematurely brought, will not operate as a bar or an estoppel to a subsequent suit. Oakland v. Oakland Water Front Co., supra; Hogeberg v. Industrial Accident Commission, supra.
Notwithstanding the express provisions of section 582, a dismissal for laches in prosecuting an action is not a judgment on the merits but is a refusal to hear and determine on the merits. Johnston v. Baker, 167 Cal. 260, 263, 139 P. 86.
A judgment by the court dismissing an action for failure of plaintiff to file a cost bond when required is not for one of the causes mentioned in section 581, but nevertheless in the light of the provisions of section 1908, subd. 2, Code of Civil Procedure, the judgment is not on the merits and is not a bar to a subsequent action involving the same subject-matter. The only matter adjudged is that security for costs had not been given. Rosenthal v. McMann, 93 Cal. 505, 509, 29 P. 121. A judgment for costs is not based on the merits and is not res adjudicata. Taylor v. Darling, 22 Cal.App. 101, 133 P. 503. A judgment dismissing an action at plaintiff’s costs, without prejudice, upon plaintiff’s voluntary dismissal is no bar to a subsequent suit. Hibernia Sav. Soc. v. Portener, 139 Cal. 90, 72 P. 716; Brown v. Shroeder (Cal.App.) 263 P. 325. When the court discovers that a contract sued on is illegal and void and should not be enforced, it will dismiss the action and leave the parties where it found them, although neither party moves for a dismissal. Kreamer v. Earl, 91 Cal. 112, 118, 27 P. 735; Bank of Orland v. Harlan, 188 Cal. 413, 421, 206 P. 75; MacRae v. Heath, 60 Cal.App. 64, 72, 212 P. 228. But the court may not dismiss an action for disobedience to the orders of the court. The remedy in such case is to punish for contempt. (9 Cal.Jur. 523, and cases cited.)
It is only in exceptional cases that the doctrine of res adjudicata upon a judgment of dismissal will be invoked.
In Pyle v. Piercy, 122 Cal. 383, 55 P. 141, it appeared that when the action was called for trial the defendant made a motion to dismiss the action for the reason that plaintiff failed to appear. Plaintiff’s attorney then appeared and declined to further prosecute the action, and the court thereupon ordered the action dismissed and gave judgment for defendant for costs. Thereafter plaintiff commenced a new action, and defendant pleaded former adjudication. The Supreme Court said:
"When there has been no adjudication of the cause upon its merits, it will only be in exceptional cases that this court will hold that a judgment of dismissal is the equivalent of a judgment of res adjudicata upon the facts. Upon reason there is nothing to justify such a rule [plea]; nothing has been litigated, and no principle of estoppel can be invoked. If plaintiff had proceeded with the trial until nonsuited upon the weakness of her evidence, such judgment of nonsuit would not have been a bar to the commencement of the present action. How much less reason to declare a bar under existing circumstances. We find no direct authorities in this state upon the question, but in the case of Laird v. Morris, 23 Nev. 34 [42 P. 11], the matter is directly presented under a similar statute, and after careful consideration it was held that such a judgment was not a bar."
See, also, Brown v. Shroeder, supra.
The onus was on defendant to establish that the judgment of dismissal of the former action was a bar to or estoppel against the maintenance of the action at bar, and the record does not show that any proof was taken by the court which would infer, much less establish, that the judgment was on the merits; the record does not affirmatively show or infer that the judgment was given on the merits of the action, nor that it necessarily involved the merits, issues, or facts; no inference may be indulged in that the judgment was on the merits; the judgment does not certainly or uncertainly define any of the rights of the parties other than plaintiff should no longer maintain the action; the face of the record leaves to conjecture what was necessarily involved in and decided by the judgment; and no ground for the dismissal is shown.
Defendant’s contention that this court should read into the judgment some assumed state of facts which would make it a bar to the present action has no support in the decisions of the courts, nor can we find any support for such contention in the texts of the law writers. On the contrary, as held in Pyle v. Piercy, Oakland v. Oakland Water Front Co., Gray v. Dougherty, supra, Horton v. Goodenough, supra, and other decisions quoted from in this opinion, this court may indulge in no such assumption.
Neither can we agree with defendant in his claim that as the judgment of dismissal was not within the provisions of section 581 of the Code of Civil Procedure and that by reason of section 582 the judgment was on the merits.
If we should indulge in any assumption, it might well be that when the lower court sustained defendant’s motion to strike the second amended complaint, plaintiff refused to further prosecute the action, and that thereupon the court gave its judgment dismissing the action for lack of prosecution.
The judgment was not entered upon any consideration of the facts involved in the action nor upon merits or issues shown by the pleadings therein, and therefore the judgment is not a bar to this action or an estoppel against its maintenance.
Respondent contends that by the prior action plaintiff elected to rescind, thereby elected his remedy, and is precluded from maintaining this action in damages for fraud.
The original complaint in the prior action pleaded an attempt by plaintiff to rescind. It was demurred to by defendant on the ground that it did not state a cause of action, the demurrer was sustained, plaintiff filed his amended complaint in damages for fraud, and defendant answered it. Therefore, so far as the parties are concerned, plaintiff’s attempt to plead rescission was wholly abortive, and by the amended complaint and defendant’s answer thereto the parties predicated the action in damages. Defendant did not plead in the prior action that by his complaint plaintiff elected to follow rescission as his remedy.
In opposition to defendant’s contention, plaintiff calls particular attention to the recent case of Herdan v. Hanson, 182 Cal. 538, at 542, 189 P. 440, 442, in which Herdan recovered damages against Hanson for fraud in a trade of properties between them. Herdan had brought a prior action against Hanson based on alleged rescission, in which the court granted a nonsuit and dismissal of the action on the ground that Herdan failed to tender Hanson a deed of the property he obtained from Hanson. In the subsequent action for damages Hanson contended that, by the action for rescission, Herdan elected his remedy and was barred from maintaining the damage suit. In passing upon this contention the court said:
"Where a party makes a mistake in election of remedies, he is not estopped by his abortive election from subsequently resorting to and pursuing a remedy to which he was really entitled. Agar v. Winslow, 123 Cal. 587, 56 P. 422, 69 Am. St. Rep. 84. *** The effect of the judgment of nonsuit in the prior action was merely to leave the plaintiff and defendant in the same relative position as before the action was commenced, namely, with a subsisting contract through which plaintiff claims to have been defrauded. McGibbon v. Schmidt, 172 Cal. 70 [155 P. 460]. *** ‘The defendant is placed in no worse position by reason of the unsuccessful prosecution of that action. There is, consequently, no estoppel."’
The Herdan Case has peculiar application here. This action is based on damage for false representations on substantially the same allegations of facts as contained in the amended complaint in the prior action.
"Under the well-settled principles of the doctrine of estoppel, the disadvantage [which may be caused the other party by the change of remedy] *** must be a real injury, such as would, in contemplation of law, amount to" an "estoppel. When it is of this character the doctrine of election of remedies will be applied by the courts. Buckmaster v. Bertram, 186 Cal. 673, 678 (200 P. 610)." Mansfield v. Pickwick Stages, 191 Cal. 129, at 131, 215 P. 389, 390, and Roullard v. Rosenberg Bros. & Co., 193 Cal. 360, 224 P. 449.
In this action the defendant has not shown or claimed that he suffered any disadvantage by reason of the prior plea in rescission and the subsequent pursuit by plaintiff of the remedy of damages.
We hold that plaintiff did not elect his remedy by the prior action.
Respondent contends that the jury, in assessing the damages, was under the influence of passion and prejudice.
There was a conflict in the evidence upon the question whether defendant had the offer of $250 per acre for the land before the procure plaintiff’s conveyance of his one-third interest. There was, however, substantial evidence supporting plaintiff’s contention that defendant then had such offer. This evidence was sufficient to sustain the special finding of the jury that defendant had the offer before he bought plaintiff’s interest.
The evidence showed without contradiction that defendant made an agreement to sell the land for $250 per acre on the day he bought plaintiff’s interest in it upon the basis of $175 per acre.
Each party called two witnesses who testified as to the fair market value of the land in the month in which the transaction occurred, each of whom qualified as an expert. One of plaintiff’s witnesses testified that the value was $300 per acre, and the other $250. One of defendant’s witnesses testified that the value of the whole of the land was $175 per acre and that the value of an undivided one-third interest was on the basis of $130 per acre for the whole. Defendant’s other witness testified that the value of the whole of the land was $180 per acre and that an undivided one-third interest was one-third of the value of the whole.
There was substantial support for the verdict of the jury, and there is nothing in the record which tends to show that the jury was actuated by passion or prejudice.
Inasmuch as the court’s order does not say that the new trial was granted on account of the insufficiency of the evidence, we must presume in accordance with the mandate of section 657, Code of Civil Procedure, that the new trial was not granted on that ground but upon the questions hereinbefore discussed.
The order of the trial court granting a new trial is reversed.
We concur: WORKS, P. J.; THOMPSON, J.