This appeal is from a judgment of dismissal on the merits on a motion for summary judgment in an action for specific performance of a contract and damages for its breach. It is a diversity case. This Court has jurisdiction under 28 U.S.C. § 1291 .

On April 13, 1959, the World Church (Church) as seller, entered into a contract of sale of California real estate to the appellant and Sunset Development Company. Performance of the contract was to be completed on July 24, 1959. On June 1, 1959, the Church, the seller, gave notice of the cancellation, termination and rescission of the contract.

On March 28, 1960, appellant commenced an action against the Church in the Superior Court of thé State of California in and for the County of Ventura. The complaint in that action sought specific performance of the same alleged contract which was attached to the complaint in the lower court here. It also sought damages for breach of the contract. It asserted the seller was obligated to convey title to the property on July 24, 1959.

On March 17, 1961, Jackson Appliance, Inc. (Jackson) acquired title to the subject real property from the Church. On June 28, 1962, Jackson intervened in the state court action in Ventura County and filed its answer in intervention. It alleged ownership of the property, that it owed no amount in damages to appellant and that there was no right in appellant to specific performance of the contract.

On July 23, 1962, the Superior Court for the State of California in Ventura County entered a judgment on the merits in that suit in favor of Jackson and the Church. That judgment found appellant was not entitled to damages from either defendant or intervener and was not entitled to specific performance of the contract.

The state court judgment was appealed to the District Court of Appeals for the State of California and on October 23, 1963, was affirmed. 221 Cal. App.2d 468 , 34 Cal.Rptr. 498 . Petition for hearing by the Supreme Court was denied December 18,1963.

This action was filed in the United States District Court on February 26, 1964. It concerns the same property that was described in the prior state court action. The complaint is for damages and specific performance based on the same contract as that relied on in the former state court action. The only allegation not in the amended complaint in the state court action is that Jackson has interfered with the' appellant’s contract with the Church and is liable for damages.

RES JUDICATA OR ESTOPPEL BY JUDGMENT

There is an invasion of only one primary right by each of the defendants. That is the right to whatever contractual benefits appellant may be entitled under the contract of purchase. That right was adjudicated in the former action, which judgment is now a bar to this action by appellant.

Restatement, Judgments § 48:

See: Panos v. Great Western Packing Co., 21 Cal.2d 636 , 134 P.2d 242 (1943); McNulty v. Copp, 125 Cal.App.2d 697 , 271 P.2d 90 (1954).

Appellant seeks to avoid the effect of this rule by contending that Jackson was not a party to the first case. Jackson was a party to the case by intervention and subject to the jurisdiction of the court. It raised the questions in its answer in intervention that terminated the case. The state court judgment provided dismissal as to Jackson.

All matters that could have been raised by any of the parties will be considered as adjudicated.

Heiser v. Woodruff, 327 U.S. 726 , 66 S.Ct. 853 , 90 L.Ed. 970 (1946), rehearing denied 328 U.S. 879 , 66 S.Ct. 1335 , 90 L.Ed. 1647 :

Hatchitt v. United States, 158 F.2d 754 (9 Cir. 1946):

McFaddin v. H. S. Crocker Co., 219 Cal.App.2d 585 , 33 Cal.Rptr. 389 , 392:

STATUTE OF LIMITATIONS

The contract was to be performed by the Church on July 24, 1959. This action was commenced February 26, 1964, more than four years later. The statute of limitations that governs the actions on the contract is California Code of Civil Procedure, Section 337 (Vol. I, R.p. 88, lines 25-28). It is a four year limitation and bars action against the Church.

Appellant cites cases which purport to permit a postponement of the running of the statute. They are Ross v. Tabor, 53 Cal.App. 605 , 200 P. 971 (1921); Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740 , 47 P.2d 273 (1935), and Tahoe Pines Co. v. Newman, 59 Cal.App. 186 , 210 P. 445 (1922). They do not assist appellant here.

Ross v. Tabor holds that since the contract involved was an executory one, the statute of limitations did not commence running until the time arrived for complete performance, unless there had been a mutual abandonment or rescission by the plaintiff. ,

The Union Sugar case holds that in an executory farming contract, “where the parties did not mutually abandon or rescind it upon a breach or successive breaches, the injured party could wait until the time arrived for a complete performance by the other party and then bring an action for damages for such breaches.” (47 P.2d page 276)

The Tahoe Pines Co. case holds that in an action for specific performance of an installment contract for the purchase of realty, the cause of action accrues when the last installment becomes due. This is based on the equitable doctrine of mutuality. Neither party to such an installment contract can maintain an action for specific performance until the final payment is due since the “vendor is prevented because of the fact that the installments are not due, and the vendee for the reason that until he has made full payment he is not in a condition to demand a conveyance.” 210 P. page 447)

The principle is stated in Restatement, Contracts, as follows:

The appellant states the statute of limitations is a personal defense and was not raised by the Church and Jackson cannot raise it for the Church. We disagree as the correct statement of the law appears to be stated in Taylor Bros. Co. v. Duden, 112 Utah 436 , 188 P.2d 995, 996 (1948), where the court quoted 34 Am.Jur., Limitations of Actions, § 379, page 294:

See also: Johnson v. Ware, 58 Cal. App.2d 204 , 136 P.2d 101 (1943); Tinsley v. Lombard, 46 Or. 9 , 78 P. 895 (1904) ; George v. Butler, 26 Wash. 456 , 67 P. 263 , 57 L.R.A. 396 (1901); Developments—Statute of Limitations, 63 Harv.L.Rev. 1177, 1250 (1950).

Appellant says this action is one for slander of title by Jackson and is therefore not barred by the two year statute of limitations, Cal.Code of Civil Procedure, Sec. 339. The claim of slander of title is made for the first time on appeal. The complaint alleged a claim for damages against Jackson for interference with contract. Such a claim is barred by the two year statute, Sec. 339. McFaddin v. H. S. Crocker Co., 219 Cal. App.2d 585 , 33 Cal.Rptr. 389, 393 (1963).

The appellant may not change his theory for the first time on appeal, which appellant has endeavored to do to avoid the applicable statute of limitations.

From the record here it appears that if permitted appellant could not set out a valid claim for relief on the theory of slander of title. The contract between appellant and the Church has been adjudged invalid. The claim of slander of title requires a showing of falsity — that is lacking here. The validity of Jackson’s rights were adjudicated in the state, court.

The law in California on this subject is stated in Kirsch v. Barnes, 153 P.Supp. 260 (N.D.Cal.1957), affirmed 263 F.2d 692 (9th Cir. 1959).

The judgment of the District Court is affirmed.

Appellee Jackson asks for damages under 28 U.S.C.A. § 1912 , which authorizes their allowance for delay. We do not consider this case as one calling for a penalty of damages against the appellant and grant no relief under that section.

. Sunset Development Company conveyed all its interest in the contract to the appellant prior to the commencement of this action. Reference -will only be made to appellant Boys Town, U.S.A., Inc.