Speer

The sole contention of appellant is that the trial court erred in applying the provisions of section 439 of the Code of Civil Procedure as a bar to his recovery. Said section reads as follows: “If the defendant omits to set up a counterclaim upon a cause arising out o£ the transaction set forth in the complaint as the foundation of the plaintiff’s claim, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor.” The term “transaction” employed in this section embraces not only a commercial negotiation or contract but also whatever may be done by one person which affects another’s rights and out of which a cause of action may arise. (Colla v. U-Drive Autos, Inc., 111 Cal. App. (Supp.) 784 [ 294 Pac. 378 ].)

Appellant was the plaintiff in the trial court and commenced this action against respondent to" recover, among other items, the sum of $3,270.19 (as more fully set out in a bill of particulars) paid by appellant to respondent over a period of several months by way of advancements for commissions on sales of certain orchard heaters by virtue of a written contract between the "parties. The defendant pleaded the provisions of said section as a…