Griswold v. Pieratt

Citations

• 110 Cal. 259
• 42 P. 820
• 1895 Cal. LEXIS 1052

Syllabus

<p>Negligence—Master and Servant—Breach of Contract—Settlement —New Contract — Defense—Counterclaim—Cross-complaint.—In an action against a defendant employed to bud a quantity of young fruit trees, for alleged negligence in executing the contract, to the damage of the plaintiff, where the answer denies the alleged negligence, and pleads an accounting and settlement of all accounts and differences in relation to the budding of the trees, and the making of a new contract in connection with such accounting and settlement for payment of the services, alleged to have been broken by the plaintiff, for which breach the defendant pleads a counterclaim, and also a cross-complaint, claiming damages for breach of the new contract in a sum less than three hundred dollars, the answer discloses a defense to the plaintiff’s demand; but the facts pleaded are insufficient to constitute a counterclaim or cross-complaint, because it does not show a cause of action arising out of the transaction set forth in the complaint, nor connected with the subject of the action; nor is the amount of the defendant’s demand against the plaintiff within the jurisdiction of the superior court to justify recovery upon an independent counterclaim.</p> <p>Id.—Accounting — New Contract — Improper Action. — Where an accounting and settlement is had between the parties under a prior contract, by which a different compensation and mode of compensation is fixed for services rendered, and the time for performance enlarged, the accounting and settlement becomes a new contract, and is conclusive upon both parties unless impeached for fraud, accident, or mistake, and no action will lie upon the original contract while the new contract remains in force.</p> <p>Id.—Jurisdiction—Counterclaim—Justice’s Court.—In an action in the superior court arising upon contract, a counterclaim arising upon a different contract from that pleaded by the plaintiff, not set up as a defense but as a ground for an affirmative judgmen