BENJAMIN LOVEJOY, Respondent, v. L. C. CHANDLER, Appellant

[No. 14382. Department Two. February 10, 1892.] BENJAMIN LOVEJOY, Respondent, v. L. C. CHANDLER, Appellant. Abatement — Another Action Pending — Vendor and Purchaser — Mortgage — Breach of Warranty — Money Paid. — An action by a purchaser to recover damages from the vendor for breach of an express covenant of warranty in the deed against the claims of mortgagees is not for the same cause of action as an action to recover money laid out and expended by the purchaser for the vendor at his special instance and request in redemption of the mortgage, and which the vendor agreed to repay. Appeal from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. The action was brought to recover money paid in redemption of a mortgage to Samuel and Margaret Poor-man, which the defendant agreed to pay when he conveyed the mortgaged land. Further fact are stated in the opinion, and in the decision of the case of Ebel v. Chandler, ante, p. 372. George A. Blanchard, for Appellant. F. D. Ryan, and Johnson, Johnson & Johnson, for Respondent. [MAJORITY — Fitzgerald, C. The Court.] Fitzgerald, C. This case and the case of Ebel v. Chandler, ante, p. 372, just decided, were tried together in the court below, and the testimony, decision, and transcript, except the amount of the judgment and the plea in abatement set up in the answer, of the pendency of another cause of action between the same parties and for the same cause, and the testimony on such plea, are in all material respects the same. It appears that plaintiff, prior to the commencement of this action, brought an action against the defendant to recover the sum of $3,498 for damages for breach of the express covenant contained in the deed “ to warrant and defend the title to the same against all claims of Samuel and Margaret Poorman.” This action was brought to recover the sum of $3,498, and the interest thereon,amounting to $265.26, for money laid out and expended for and on behalf of the defendant by the plaintiff at the defendant’s special instance and request, and which defendant promised to repay to plaintiff. The finding of the court, “ that there was not, at the time of the commencement of this action, another action pending or undetermined in this court between the same parties for the same cause of action as stated in the plaintiff’s complaint herein,” is sustained by the evidence. We recommend that the judgment and order be affirmed. Vanclief, 0., and Foote, 0., concurred. The Court. For the reasons given in the foregoing opinion, the judgment and order are affirmed.