Ballenger v. Tillman

• Citation: 324 P.2d 1045,133 Mont. 369
• Decision Date: 30 April 1958
• Docket Number: No. 9645,9645
• Parties: Joel BALLENGER, Plaintiff and Respondent, v. Oscar TILLMAN and Mrs. Oscar Tillman, husband and wife, Defendants and Appellants.
• Court: Montana Supreme Court

Page 1045

324 P.2d 1045

133 Mont. 369

Joel BALLENGER, Plaintiff and Respondent, v. Oscar TILLMAN and Mrs. Oscar Tillman, husband and wife,

Defendants and Appellants.

No. 9645.

Supreme Court of Montana.

Submitted Dec. 5, 1957.

Decided April 30, 1958.

A. L. Libra, Thompson Falls, for appellants.

A. S. Ainsworth, Thompson Falls, for respondent.

HARRISON, Chief Justice.

This is an appeal by the defendants, Oscar Tillman and his wife Mrs. Oscar Tillman, from a judgment in favor of the plaintiff, Joel Ballenger, rendered by the district court of the fourth judicial district of the State of Montana, in and for the County of Sanders.

In his complaint plaintiff alleged:

'1. That at all times herein mentioned the defendants were husband and wife, residing together as such.

'2. That the defendants are indebted to the plaintiff in the sum of Three Hundred and two and 74/100 Dollars ($302.74), being the balance due on stumpage from timber purchased of and from the plaintiff.

'That the plaintiff had demanded payment of and from the defendants and they have failed and still fail to pay said sum, or any part thereof, and the sum is still and wholly unpaid; and that the plaintiff is entitled to interest on said sum at the rate of 6% per annum from date hereof.'

Prayer for judgment for $302.74, with interest and costs.

On August 9, 1954, three days after the complaint was filed, the defendants filed a demand for a copy of the account sued on as provided under section 93-3804, R.C.M., 1947. This account was furnished by the plaintiff on August 11, 1954, and as filed stated:

'That the account sued on in the above-entitled matter is for timber cut from the land of the plaintiff near Heron, Montana, during the past year, for which the defendants agreed to pay $6.00 per thousand feet for mixed timber and $15.00 per thousand feet for white pine timber as stumpage.

'That 105,490 feet of mixed timber was cut and removed from said premises and 7,320 feet of white pine timber was cut and removed from said premises; and 10,000 feet of mixed timber was cut into logs but have not been removed by the defendant.

'That 105,490 feet of mixed timber at $6.00 per thousand amounts to $632.94. That the white pine timber so cut and removed at $15.00 per thousand amounts to $109.80. That the 10,000 feet of mixed timber cut into logs but not removed amount to $60.00, making a total of $802.74.

'That defendants have paid to apply on said stumpage the sum of $500.00, thus leaving a balance due and unpaid for stumpage of $302.74.

'That this statement of account is rendered in compliance with the demand made by the defendants.

'Dated at Thompson Falls, Montana, this 10th day of August, 1954.

'/s/ A. S. Ainsworth

'Attorney for Plaintiff.'

To this complaint, the defendant filed a general demurrer which was overruled.

Defendant answered and cross-complained, and plaintiff in due course replied thereto, denying each and every allegation contained therein.

The cause came on for trial February 21, 1955, at the conclusion of which defendant made written request for findings of fact and conclusions of law, and submitted proposed findings and conclusions to the court.

On April 18, the court duly entered its findings of fact and conclusions of law as follows:

'Taking the cause by its four corners and giving due consideration to all of the competent evidence, the Court finds by a preponderance of the competent evidence that the allegations of the Complaint of the plaintiff are true.

'The Court further finds there is an insufficiency of competent evidence to prove by a preponderance thereof the allegations of the affirmative defense and cross-complaint of the defendants, Oscar Tillman and wife.

'As a Conclusion of Law, the Court finds that the plaintiff is entitled as of right to Judgment as alleged and prayed for in his complaint.

'The Court further finds that the requested Findings of Fact and Conclusions of Law of the defendants should be refused and denied.'

On April 23, defendant filed his exceptions to the findings of fact specifying as error that the findings were not decisive of the specific material issues raised in this action; that the findings are actually conclusions of law rather than findings of fact.

These exceptions were overruled and judgment subsequently entered for the plaintiff in pursuance to the prayer of his complaint. From this judgment the defendants have appealed.

Defendants appeal upon eight specifications of error, resolving themselves into the following issues to be dealt with seriatim:

(1) That the evidence is insufficient to sustain a judgment for the plaintiff but on the contrary the preponderance of the evidence is in favor of the defendant;

(2) That the evidence is insufficient to sustain a judgment against the defendant, Mrs. Tillman;

(3) That the findings of fact and conclusions of law made and entered by the court are insufficient to support the judgment;

(4) Nonjoinder of indispensable parties plaintiff; and

(5) The court erred in not sustaining defendants' motion to strike the cost bill.

In determining the first issue, we find that upon credible testimony of the plaintiff and three other witnesses there was sufficient evidence to sustain the judgment in plaintiff's favor. While Mr. Tillman's testimony was contradictory to plaintiff's on the question of how much he had contracted to purchase the timber for, 'we see no such inherent conflict as would warrant a departure from the well-established rule that the credibility of the witnesses and the weight to be given their testimony was for determination by the court below. Its findings supported as here by substantial evidence will not be disturbed. Ingalls v. Austin, 8 Mont. 333, 20 P. 637; Healy v. First Nat'l Bank, 108 Mont. 180, 89 P.2d 555; Wieri v. Anaconda Copper Min. Co., 116 Mont. 524, 156 P.2d 838; Giarratana v. Naddy, 129 Mont. 154, 160, 284 P.2d 254.' Notti v. Clark, Mont., 322 P.2d 112, 113.

As to the second issue, it is clear that there was insufficient evidence to sustain any judgment against Mrs. Tillman. Upon cross-examination the following testimony adduced from the plaintiff negatives any recovery against her. The testimony conclusively states that the agreement and negotiations were made between Mr. Tillman and plaintiff:

'Q. Now, you made this agreement personally with Mr. and Mrs. Tillman jointly? A. No, sir, I made it personally with Mr. Tillman.

'Q. But you said during your direct examination that Mr. Tillman and his wife purchased the timber. * * * A. Mrs. Tillman--the money that I did receive from Tillman was made out in a check by Mrs. Tillman, so therefore I sold the timber to Mr. and Mrs. Tillman.

'Q. Did Mrs. Tillman buy it from you? Who did you talk to when you made these negotiations? A. Mr. Tillman.

'Q. And did Mr. Tillman say 'Now, my wife and I are buying this jointly.'? A. No. * * *

'Q. Well with whom did you make the negotiations then? A. With Mr. Tillman. * * *

'Q. And where was this that he made this agreement? A. Where was it?

'Q. Yes. A. Right in among the timber. * * *

'Q. Was anyone else present? A. No.

'Q. Just the two of you? A. Yes, sir.

'Q. Not Mrs. Tillman? A. No.'

It is clear that plaintiff's assertion that the agreement was made with both defendants was based upon his own conclusion of what payment for the timber by check, signed by Mrs. Tillman, meant. However, the evidence and testimony quoted above negatives any idea that Mrs. Tillman was a party to or entered into any negotiations with plaintiff. Plaintiff completely failed to prove any partnership, joint venture or other legal relationship existing between himself and Mr. and Mrs. Tillman jointly--as would sustain a judgment against Mrs. Tillman. Insofar as the judgment assumes to bind her, it is modified and the judgment should be amended so as to name only Mr. Tillman.

Under the third issue, the defendant contends that the findings of fact are insufficient for the reasons: (a) they are mere conclusions of law; and (b) the trial court failed to make findings on any of the issues in the case.

R.C.M.1947, Sec. 93-5303, provides for the court, in rendering its decision, to separately state its findings of fact and conclusions of law. This court has held that upon proper request it is the duty of the district court to make findings, in the absence of which the cause presents grounds for reversal. City of Helena v. Hale, 38 Mont. 481, 484, 100 P. 611; Rogers-Templeton Lumber Co. v. Welch, 56 Mont. 321, 327, 184 P. 838. In the cases cited we have also held that a cause may be reversed, although findings are made, where such findings are so lacking in substance as to constitute no findings at all.

In the instant case, the findings are based upon the allegations of the pleadings. Although we have held that such findings are valid, nevertheless they must be weighed as to sufficiency by the complaint or pleading upon which they are based. Quinlan v. Calvert, 31 Mont. 115, 117, 77 P. 428.

If the findings of fact refer to the complaint, then to be sufficient, the complaint must state a cause of action. 89 C.J.S. Trial Sec. 630, p. 461; Neusted v. Skernswell, 69 Cal.App.2d 361, 159 P.2d 49; Schomer v. R. L. Craig Co., 137 Cal.App. 620, 31 P.2d 396.

Since the findings of fact in the instant case are based upon the complaint, an examination of that instrument is mandatory for a determination of the present issue. It is quite apparent from the pleading that plaintiff has based his complaint upon the action on account, or as it is commonly known, on an 'open account.'

In section 93-3804, R.C.M.1947, our code provides that, 'It is not necessary for a party to set forth in a pleading the items of an account therein alleged * * *'. Since no specificity of pleading is needed in this regard, it is not necessary to allege the items constituting the account, but an allegation that an indebtedness is owing from defendant to plaintiff for the...