Davison v. Kellar
| Decision Date | 06 April 1915 |
| Docket Number | 3671 |
| Parties | A. H. DAVISON, Plaintiff and respondent, v. JAMES A. KELLAR, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Kingsbury County, SD
#3671--Reversed
E. F. Green, Null & Royhl
Attorneys for Appellant.
Warren & Warren
Attorneys for Respondent.
Opinion filed April 6, 1915
Plaintiff pleaded, as four separate causes of action, in substance as follows: (1) That he was the owner of certain lands; that defendant went into possession of and farmed such lands under a written lease during a period including the years 1905, 1906, and 1907; that defendant had not made a true and correct accounting of the products of said farm, but had appropriated large amounts of grain and sums of money to his own use; that he had sought an accounting which defendant had evaded; that he had investigated and found certain shortages existing by virtue of transactions under such lease; and that there were due him certain specified sums therein fully set forth, being four sums claimed to be due for cash rental of certain pasture lands and two for other things. (2) That defendant occupied and farmed the said lands, under another lease, during the years 1908 and 1909; that defendant had failed to make a true and correct accounting of the products of said farm, but had appropriated grain and money to his own use; that he had sought an accounting of defendant, which defendant had evaded; that he had investigated and found certain shortages existing by virtue of transactions under such lease; and that such claimed items of shortage included seven separate items for alleged conversion of grain. (3) That defendant was indebted to plaintiff in the sum of $400 for alleged waste committed through the injury and destruction of a certain barn. (4) That there might be other items for which defendant should be held to account; that there never had been a complete settlement and accounting between the parties, and particularly as to certain stock placed upon said lands by plaintiff; that defendant had refused to make an accounting of said stock or of grain raised; and that defendant should be required to submit statements under oath of all the products of such lands covering the years from 1905 to 1908), inclusive. Defendant pleaded the statute of limitations as to one item in the so-called first cause of action; he entered specific denial of any liability as to each of the items set forth in the first three so-called causes of action; and, in answer to the fourth cause of action, he alleged that he had from time to time made full and complete reports. Defendant then, by way of counterclaim, alleged that plaintiff was indebted to him in a large sum upon matters growing out of their relation of landlord and tenant; the items of such claim being set forth. Such items included an alleged agreed balance due for the year 1904, three separate items for breaking done, three separate items for moneys advanced to pay for threshing grain, an item for seed grain furnished, board for certain men, cost of a certain cleaning machine, charge for binding twine furnished, three items for labor performed by defendant. Plaintiff, replying, entered a denial to each allegation contained in the counterclaim, and further pleaded, as to two of the charges therein set forth, that they were barred by the statute of limitations.
Trial was had to the court without a jury. Defendant proposed certain findings which were refused by the court. These proposed findings covered the ownership of the land, the making of the leases, and the farming of the lands thereunder. Such proposed findings set forth the fact that numerous items of account had been settled from time to time, but that certain items had not been included in such settlements, and that such items represent all unsettled matters between the parties. Then followed proposed findings as to certain items pleaded by each party, with a recapitulation of the amounts due thereunder, showing the amount due on each item, to whom due, the total of the items due each party, and the balance that, under such findings, would be due defendant. The trial court then made certain purported findings of fact, which, after setting forth the ownership of the lands, the leases, and the occupation and farming of the lands, thereunder, concluded as follows:
"That, during the regular course of said tenancy, numerous items of account arose between plaintiff and defendant, by reason of which the defendant became charged with certain of said items, consisting of the landlord's share of the crop raised on said leased premises and sold or used by the defendant under the terms of said contract and with the consent of the plaintiff, the proceeds from the sale of said hogs, and numerous other items properly charged against the defendant and in favor of the plaintiff in connection with said tenancy; also that during said tenancy the plaintiff became indebted to the defendant by virtue of certain labor and services performed by the said defendant, consisting of breaking done by defendant upon said leased premises, repair of buildings, digging stone, and numerous other items; that after considering all items so chargeable against the defendant, and all items to which the defendant is entitled to credit, there is still a balance due and owing by the defendant to the plaintiff on final accounting of all transactions and dealings involved in said tenancy, of the sum of $367.94."
Judgment was entered for said $367.94 and costs, and the defendant appealed from such judgment.
Three questions are raised by the assignments of error herein: (1) Did the trial court err in failing to make separate findings either as to the several items of account pleaded or as to the several. causes of action? (2) If there was error, was it reversible error? (3) Did the court err in entering judgment without specific findings as to the items of account?
That the court should find the ultimate facts only, and should not find the evidentiary facts, has long been the settled law of this state. It has equally been the settled law of this state that the parties to an action tried by the court are entitled to a finding of fact upon each material issue of ultimate fact, properly raised by the pleadings. We think that this court, speaking through Justice Haney in McKenna v. Whittaker, 9 S.D. 442, 69 N.W. 587, not only correctly interpreted our statute, but also gave to the trial courts a guide which, at least in the majority of cases, should render it easy for such courts to determine just what should be covered by its findings in a particular case. The court in that case said:
...
To continue reading
Request your trial