Gaskill

This is an action to recover an unpaid portion of the purchase price of property. Under an executory sales contract plaintiffs agreed to sell to defendant land in Kern County. Judgment was rendered for defendant. Plaintiffs’ motion for new trial was granted “for the reason that the decision is against the law”. Defendant has appealed from this order.

The sole defense interposed is that of res judicata. The trial judge found in favor of this defense and rendered judgment for defendant. The motion for new trial was heard and granted by another judge. The sole question argued by counsel is whether the defense of res judicata was established and the judgment based upon it properly rendered. We will confine ourselves to that question.

Some time prior to July 1, 1931, plaintiffs entered into a parol contract with defendant for the sale of the Kern County land to him. This contract was reduced to writing on July 1, 1931. Among other things it provided that Wallace might employ Percy D. Gaskill to superintend the construction of a duck club and preserve on the property. A payment of $5,000 on the purchase price fell due on July 1, 1932.

Under date of July 25, 1932, plaintiffs notified…