Jacob v. Carter

Citations

• 4 Cal. Unrep. 543
• 36 P. 381
• 1894 Cal. LEXIS 1198

Syllabus

<p>Ejectment—Defenses—Pleading and Proof.—Where, in ejectment, the complaint merely alleges plaintiff’s ownership and right to possession, and that defendant is in possession, and refuses to surrender the same, and the answer denies the ownership and right to possession, defendant may prove any facts showing that plaintiff had no right of entry or possession when the action was commenced.</p> <p>Ejectment—Defense of Possession Under Contract of Purchase. Where, in ejectment, the defense is possession under contract of purchase, indebtedness of plaintiff to defendant for salary and money paid in excess of the payments required may be considered as a performance of the contract, under Code of Civil Procedure, section 440, which provides that, where cross-demands have existed between persons under such circumstances that, if one sued the other, a counterclaim could have been set up, the two demands shall be deemed compensated so far as they equal each other.</p> <p>A Mew Trial may be Granted as to the Issues raised by a cross-complaint without granting one as to those raised by the complaint and answer.1</p>