I. The parties to the contract contemplated the possibility of a dismissal of the Rico suit, and have agreed as to the effect of a dismissal, in the event that the same should occur and another suit, on the same subject matter, should be commenced on or before a certain date.
The eleventh day of April, 1860, is the day fixed on or before which a dismissal should not operate as a final judgment, provided said Rico should recommence a suit on the same subject matter on or before that day. The dismissal was, by the agreement of the parties, to be final, unless another suit on the same subject matter should be commenced on or before the date mentioned.
It is urged by the counsel for the appellant, in his brief on file, that the Court cannot make a contract for the parties. We admit the truth of his proposition, and ask the Court only to enforce the one that was made according to the intention of the parties.
The respondents were about to execute a deed to their ranch, by which they divested themselves altogether of their title to it; the payment of a large part of the purchase money was to await the final decision of the Rico suit. Both parties to the contract, it is presumed, knew that Rico might at any time before the submission of his suit, dismiss it either by motion in Court, or by a direction to the Clerk; they both knew that if the Rico suit should be dismissed, they had no power to compel him to bring another suit; under the circumstances, the result was a natural and fair one.
The respondents agreed that if the dismissal occurred on or before the eleventh day of April, 1860, it should not be considered a final decision if another suit should be commenced on the same subject matter by or before that time, and the appellant agreed to accept a dismissal as a final decision, provided another suit on the same subject matter should not be commenced by or before that date. The respondents did not wish to abandon all claim to their money, in the event of a dismissal by or beforethe date mentioned, as they certainly might have done, if the reasoning of the counsel for the appellant be correct.
If there had been no stipulation with regard to the effect of a dismissal, the dismissal at any time, whether another suit had been commenced or not, would have been regarded as a final decision of the Rico suit. (Dowling v. Polack , 18 Cal. 625.)
It is worthy of remark here, that the day fixed upon by the contracting parties as the one upon or before which the dismissal should not be regarded as a final decision, was the day immediately after the expiration of which the Statute of Limitations of 1855 was supposed to have become effectual as a defense to suits upon a certain class of land claims.
II. The counsel for the appellant has confounded the agreement of respondents to defend the Rico suit with an agreement to have the claim of Rico, whatever the same might have been, declared null and void by the Court. Respondents agreed faithfully to defend the Rico suit. They did not stipulate that they would not interpose a demurrer, nor that they would not move to dismiss, nor that they would not avail themselves of any legal means of defense to the Ricosuit. They agreed, merely, faithfully to defend the Rico suit, and if it should be dismissed, and another suit should be commenced on or before the eleventh day of April, 1860, on the same subject matter, they should have no right to demand the $ 14,000 by virtue of that dismissal.
The Court will observe that the dismissal in the Rio suit was upon the substantial ground, that the complaint did not state facts sufficient to constitute a cause of action. No suit could properly be brought on the same state of facts without being the subject of a similar motion. Could another suit, on a different state of facts, be regarded as a suit on the same subject matter, though it might be for the same object?
We believe that the parties to the contract, in the provision with regard to a dismissal and the commencement of another suit on or before the eleventh day of April, had reference themselves to a dismissal upon technical grounds, or a voluntary dismissal by Rico.
The faithfulness of a defense does not always depend upon the willingness of the defendant, or his attorney, to allow a case to be passed upon on its merits, but frequently upon the opposite course. It might, with asmuch propriety or correctness, be contended that the respondents, to comply with their agreement, should not have objected to illegal testimony that might have been offered by Rico on the trial of the suit, because such an objection might compel him to submit to a nonsuit, or to move for a dismissal.
It seems clear that the eleventh day of April was the day fixed on by the parties after which a dismissal should be considered a final judgment.
III. Neither the deed nor contract disclose the particular character of the Rico suit. It is mentioned as a suit for the recovery of a part of the property sold. The counsel for appellant says, in his brief, page seven, the suit " must therefore be taken to be an ejectment suit." He says further, same page: " To finally decide and determine an ejectment suit as against all claim made therein, necessarily implies and must be taken to mean, to decide and determine that the party plaintiff laying claim to the property in dispute, has no claim or title therein or thereto; in other words, the language thus employed means a trial and decision on the merits."
We agree with him, that the action brought by Rico must be taken to have been anaction of ejectment, but we deny that a decision of that action in favor of respondents necessarily involved a decision that Rico had no title to the property in dispute. A judgment in ejectment is not conclusive of anything more than the right of the claimant to the possession of the land sued for, and the occupation of it by the defendant. (Yount v. Howell , 14 Cal. 468.)
The decision on the motion to dismiss, the ground having been that the complaint did not state facts sufficient to constitute a cause of action, was a decision of the suit upon its merits, so far as the right to bring another suit on the same state of facts was concerned. It was like the dismissal of a bill in equity for want of equity.
IV. The appellant claims that the contract has not been complied with in spirit, and that according to the true intention of the parties, at the time of making it, appellant was to have his title " free and clear of the Rico suit before the respondents should be entitled to the balance of the purchase money."
We submit that we have shown that the respondents have done more than they were required to do under the contract. They have not only successfully defended the Rico suit, but they have put it out of Rico's power to appeal from the judgment of dismissal by paying him to dismiss and abandon it.
If the appellant has any standing in Court, it must be upon a technical and rigid construction of the contract with regard to the time when the Rico suit was dismissed, and an utter disregard of the intention of the parties in making it.
How stand the parties to this suit in Court? The respondents, if they do not recover now, can never recover under the contract, because they cannot compel Rico to bring another suit, nor can they resuscitate the suit already dismissed.
The appellant is seeking to evade the payment of the money, not upon any allegation of trouble, either present or apprehended, from Rico; not because another suit has been brought by Rico, or threatened by him, but merely upon the alleged technical noncompliance of the respondents with the contract.
We submit that if intentions or equities are to govern, the appellant should meet with little favor.
V. The appellant claims that Ashley and Sullivan should have been made parties. If so, it was his duty to have moved to have them made parties before going to trialin the case. It was not the duty of the respondents to do it; they claimed no relief or judgment against Ashley or Sullivan. But why should either have been made parties? Ashley had an order for $ 1,000 which this Court has held to be an assignment pro tanto, and he might sue on his own account. The respondents withdrew all claim to this portion of the $ 14,000.
With regard to Sullivan, who had a mortgage on the premises, the deed provided that out of the $ 14,000 the mortgage should be paid--that is, respondents in their deed covenanted that they would, out of the $ 14,000, pay the Sullivan mortgage. The respondents were the persons to discharge the mortgage, and they could not do it without receiving the money from appellant. They sued him so that they might be able to discharge the mortgage. He does not fear any misapplication of the money by respondents, nor does he even allege any reason for the ground he has taken with regard to the mortgage, but relies merely upon the technicalities of the law to protect him.
Our positions with regard to the mortgage are, that we were the persons to discharge it; that the appellant relied on our covenant to do so, and was obliged to rely on that covenant, unless he charged us with an intention to misapply the money; that it was his duty to move the Court that Sullivan should be brought in, if it was necessary to bring him in; that he should have performed this duty, as he had ample opportunity to do, before the trial.
But the Court has provided against any complaint by appellant, by providing that the Sheriff who collects the money shall pay the same into Court, unless a discharge of the mortgage be first filed. The whole fund will be under the direction of the Court. If any one has a right to complain, the respondents have that right.
JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
NORTON, Judge
By the terms of the deed, the $ 14,000 were to be paid when the action of Rico should be finally decided in favor of the defendants (the plaintiffs in this action) as against all claims made by said Rico. The terms of the contract executed simultaneously with the deed are in effect the same. The stipulation is, not that all claim of Rico was to be finally adjudged, but that the particular action then pending should be finally decided. By the contract it is stipulated that a dismissal of the action should not be considered a final decision, provided a new suit for the same subject matter should be commenced by Rico on or before the eleventh day of April next thereafter. This stipulation cannot be construed as an agreement that a dismissal should in no event be deemed a final decision. The fact that the dismissal did not occur until after the time fixed for bringing a new action had no other effect than to render the stipulation as to a dismissal and a new action, nugatory under the circumstances. Perhaps it might be held, that this stipulation amounts to an agreement between the parties as to the sense in which they employed the term " final decision," and that for the purposes of that transaction a dismissal of the action, if no new suit was brought, should be deemed a final decision, whatever might be the effect of those terms in other cases. But it is not necessary for the purposes of this case to give any such effect to the stipulation. A dismissal of an action is a final decision of the action, and it is a final decision of the action as against all claim made by it, although it may not be a final determination of the rights of the parties as they may be presented in some other action. In the case of Dowling v. Polack (18 Cal. 625) the Court say: " In effect a dismissal is a final judgment in favor of the defendants; and although it may not preclude the plaintiff from bringing a new suit, there is no doubt that for all purposes connected with the proceedings in the particular action, the rights of the parties are affected by it in the same manner as if there had been an adjudication upon the merits." The money became payable upon the dismissal of the action.
The complaint does not employ the same language as the contract; that is, instead of averring that the action had been finally decided, it sets forth the fact of dismissal. But, as we have seen, they are in effect the same, and so the finding of this fact by the Court determines the material issue in the case, and hence it is immaterial whether or not the fourth finding can be regarded.
Ashley was not a necessary party to this action. If the order in his favor, drawn by the plaintiff, J. P. Leese, on the defendant and Hellmann, operated as an assignment of so much of the debt, it made him their creditor for so much, but did not make him a joint owner of the whole debt.
Nor was Sullivan a necessary party. The provisions in the contract relative to his mortgage only amount to an agreement binding J. P. Leese, personally, to pay off that mortgage out of the money to be paid by the defendant. The provisions of the decree in relation to both Ashley and Sullivan are, to say the least, as beneficial to the defendant as the facts would authorize.
The judgment must be affirmed.