Bentley v. Kasiska

• Decision Date: 03 June 1930
• Docket Number: 5461
• Citation: 288 P. 897,49 Idaho 416
• Parties: FINIS BENTLEY, Appellant, v. W. F. KASISKA and E. C. WHITE, Respondents
• Court: Idaho Supreme Court

288 P. 897

49 Idaho 416

FINIS BENTLEY, Appellant, v. W. F. KASISKA and E. C. WHITE, Respondents

No. 5461

Supreme Court of Idaho

June 3, 1930

TRIAL-APPEAL AND ERROR-FINDINGS, SUFFICIENCY OF-DUTY OF TRIAL COURT TO MAKE-"MATERIAL ISSUES"-JUDGMENT ON MERITS-NONSUIT.

1. Trial court must make findings upon each material issue arising upon pleadings and proof. (C. S., secs. 6866, 6867.)

2. On trial court's failure to make proper findings, cause will be remanded for additional findings unless such findings would not affect judgment.

3. Fact findings should be conclusive.

4. Finding that plaintiff failed to prove he was to be paid for "all" services as attorney rendered defendant held defective as evasive by referring to all rather than any part.

5. Finding that plaintiff failed to prove that, because partner performed legal services for defendant for which plaintiff received nothing, plaintiff should receive compensation for services he rendered, held defective as evasive.

6. Findings in effect that plaintiff failed to prove defendant owed plaintiff for legal services must be disregarded as conclusions of law.

7. Trial judge, finding plaintiff has not sustained allegations on issue, must specify ultimate alleged facts found not sustained by evidence.

8. "Material issues" means issues, finding on which are sufficient to justify judgment, completely adjudicating all disputed matters, notwithstanding what findings might be on other issues raised by pleadings.

9. Duty of determining facts where substantial conflict exists in evidence is with trial judge.

10. Judgment dismissing action on merits at conclusion of trial cannot under statute be treated as granting of nonsuit (C S., sec. 6831).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action on account. Judgment for defendant. Reversed.

Judgment reversed, with directions. Costs to appellant.

Merrill & Merrill, for Appellant.

A litigant has the right to have a finding responsive to the issues upon each material allegation, and a failure to find upon all of the material issues is prejudicial error. (C. S sec. 6866; 33 C. J. 1137; 24 Cal. Jur., sec. 183; Wood v Broderson, 12 Idaho 190, 85 P. 490; Erickson v. Winegar, 41 Idaho 1, 236 P. 870; Simper v. Brown, (Utah) 278 P. 529; Carson v. Thews, 2 Idaho 176, 9 P. 605.)

Findings which are evasive, or contain a negative pregnant or which are mere conclusions of law rather than ultimate facts, are insufficient and will not support judgment. A finding, therefore, which is to the effect that the plaintiff has failed to sustain the burden of proof is not equivalent to a finding upon the direct fact raised by the pleadings. (Huntington v. Vavra, 36 Cal.App. 352, 172 P. 166; Turner v. Cyrus, 91 Ore. 462, 179 P. 279; Monetaire Min. Co. v. Columbus Rexall Cons. Mines Co., 53 Utah 413, 174 P. 172; Drainage District No. 4 v. Crow, 20 Ore. 535, 26 P. 845.)

Witty & Anderson, for Respondents.

The findings of the court will be construed liberally to the end that the judgment may be supported. (Cleveland v. Mochel, 48 Idaho 37, 279 P. 410; Fairbairn v. Keith, 47 Idaho 507, 276 P. 966.)

A finding that the plaintiff has not sustained the burden of proof is sufficient for the defendant. (Noyes v. King County, 18 Wash. 417, 51 P. 1052; Dougherty v. Ward, 89 Cal. 81, 26 P. 638; Noyes v. Morris, 56 Hun, 501, 10 N.Y.S. 561; Fitzpatrick v. Sletten, 117 Ore. 173, 242 P. 1114.)

Finding that the allegations of the complaint are not supported by the evidence and are untrue is sufficient. (Wilkinson v. Bethel, 13 Idaho 746, 93 P. 27.)

It is the duty of the court to find on an issue not made by the pleadings, but arising on the evidence. (Starkweather v. Eddy, 87 Cal.App. 92, 261 P. 763.)

If the party having the burden of proof fails to sustain it a finding should be against him, and a failure to find will be presumed against such party. (Arizona Commercial Min. Co. v. Iron Cap Copper Co., 29 Ariz. 23, 239 P. 290; Dailey v. Foster, 17 N.M. 654, 134 P. 206; Byerts v. Schmidt, 25 N.M. 219, 180 P. 284.)

A blanket finding as to all matters in the answer being true is good. (Ferguson v. Koch, 204 Cal. 342, 58 A. L. R. 1176, 268 P. 342; Mazuran v. Stefanich, 95 Cal.App. 327, 272 P. 772; Dixon v. Stoetzel, 136 Okla. 302, 276 P. 730.)

A general finding is sufficient to sustain a judgment for the defendant when it would not be to sustain a judgment for the plaintiff. (Newhall v. Porter, 7 Ariz. 160, 62 P. 689; Main v. Main, 7 Ariz. 149, 60 P. 888; McGowan v. Sullivan, 5 Ariz. 334, 52 P. 986; Daggs v. Hoskins, 5 Ariz. 300, 52 P. 357; Mushrush v. Zarker, 48 Kan. 382, 29 P. 681.)

MCNAUGHTON, J. Givens, C. J., and Lee and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

This is an action by Mr. Bentley, of the firm of White & Bentley, to recover $ 1590, alleged to be the reasonable value of legal services claimed to have been rendered for the defendant Kasiska, by plaintiff on his own personal account as distinguished from the firm account. It is claimed the services were rendered at different times during a period of years; that during the time these services were rendered the plaintiff was associated with E. C. White and doing business under the firm name and style of White & Bentley. It is further alleged that under an agreement with E. C. White plaintiff was to recover the compensation for all services rendered by him for the defendant W. F. Kasiska. A bill of particulars was demanded. A statement of the items of business and fees charged was furnished the defendant.

The answer admitted plaintiff's qualifications as an attorney. It denied all other allegations of the complaint. The answer affirmatively states that the defendant employed E. C. White personally to perform the alleged services, and denies employing either plaintiff or the firm. It alleges that E. C. White was at all times mentioned indebted to the defendant in a sum in excess of $ 20,000.

Plaintiff testified to an arrangement with White whereby he was personally to receive these fees. White's testimony contradicts it.

Plaintiff testified he was employed by the defendant Kasiska to perform the services claimed and that defendant promised to pay him for them. On the witness-stand defendant flatly denied this as to each item claimed.

At the conclusion of the trial the district court entered findings of fact and conclusions of law and a judgment dismissing the action on its merits. Upon appeal plaintiff specifies error by appropriate assignments. He relies mainly upon two points. First: It is claimed the trial court erred in not permitting the appellant to testify with respect to the time he concluded the work itemized in the statement. We find the trial court was liberal in receiving testimony offered. This testimony was received at folios later than those referred to in the assignment. The record shows sufficient latitude was given plaintiff in receiving testimony.

Second: It is claimed the findings of fact are insufficient to sustain the judgment, in that they are only conclusions of law.

The findings of fact entered by the trial court are as follows:

"I.

"The court finds that the plaintiff was a duly authorized and licensed practitioner of law in the State of Idaho.

"II.

"The court finds that the plaintiff has failed to sustain the burden of proof that the defendant is indebted to the plaintiff on an open account for services rendered and performed for the defendant and at defendant's special instance and request of the reasonable value and worth Fifteen Hundred ninety and no/100 ($ 1590.00) Dollars, or any other sum.

"III.

"The court finds that no part of the sum claimed by the plaintiff has been paid.

"IV.

"The court finds that the plaintiff has failed to sustain the burden of proof that any sum is wholly due or owing at all.

"V.

"The court finds that during the period of time over which the plaintiff claimed to have rendered services for the defendant, the plaintiff was associated with one E. C. White, and that the plaintiff and E. C. White were conducting business under the firm name and style of White and Bentley.

"VI.

"The court finds that the plaintiff has failed to sustain the burden of proof that all of the services claimed to have been rendered by the plaintiff for the defendant and for which compensation was asked by this action were personally performed by the plaintiff under a special or any agreement with the said E. C. White that the plaintiff was to be paid in full for all services rendered by him for the defendant.

"VII.

"The court finds that during the space of time during which compensation is claimed herein, that both the plaintiff and E. C. White, as composing the partnership of White and Bentley, performed some legal services for the defendant.

"VIII.

"The court finds that the plaintiff has failed to sustain the burden of proof that there were various or any legal services performed by the plaintiff or E. C. White for the defendant of which the plaintiff kept no account or record; or that none of said legal services were included in the account claimed by the plaintiff of Fifteen Hundred Ninety and no/100 ($ 1590.00) Dollars.

"IX.

"The court finds that the plaintiff has failed to sustain the burden of proof that by reason of the said E. C. White rendering certain legal services to the defendant, in which the plaintiff did not participate, and from which the plaintiff received no compensation or benefit, it was agreed that the plaintiff should receive compensation for services rendered by him to the defendant.

"X.

"The court further finds that the defendant, W. F. Kasiska, and the defendant E. C. White had an agreement whereby for the...