Dillon Implement Co. v. Cleaveland

• Decision Date: 26 December 1906
• Docket Number: 1786
• Citation: 88 P. 670,32 Utah 1
• Court: Utah Supreme Court
• Parties: DILLON IMPLEMENT CO. v. CLEAVELAND et al

88 P. 670

32 Utah 1

DILLON IMPLEMENT CO. v. CLEAVELAND et al

No. 1786

Supreme Court of Utah

December 26, 1906

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by the Dillon Implement Company against G. R. Cleaveland and another. From a judgment for plaintiff, defendants appeal.

REVERSED AND REMANDED WITH DIRECTIONS.

W. R Hutchinson for appellants.

Stewart & Budge for respondent.

STRAUP J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

The plaintiff, a corporation, engaged at Dillon, Montana, in the business of buying and selling grain, commenced this action in the district court of Salt Lake county, against the defendants, who are commission merchants at Salt Lake City to recover the sum of $ 777, for oats sold and delivered by it to them between September 1 and December 15, 1902, which, it was alleged in the complaint, the defendants agreed to pay but failed to do so. The defendants answered, and by way of counterclaim alleged that on the 22d day of September, 1902, the plaintiff and the defendants entered into a written contract by the terms of which plaintiff sold to the defendants 120,000 pounds of oats at ninety cents per hundredweight, to be delivered in thirty days; and that on the 7th day of October, 1902, the plaintiff and defendants entered into another written contract by the terms of which the plaintiff sold to the defendants 400,000 pounds of oats at ninety-three cents per hundredweight, to be delivered in thirty days; that plaintiff shipped only 40,000 pounds of the 120,000 pounds and only 40,000 of the 400,000 pounds, and failed and refused to deliver any more, to defendants' damage in an amount equal to that sued for by plaintiff. A trial before the court without a jury resulted in a judgment for the plaintiff. At the trial there was no dispute as to the defendants having received the quantity of oats sued for by plaintiff. The principal issues tried arose with respect to the counterclaim. Upon those issues considerable evidence was introduced by both parties; that introduced on behalf of the defendants tended to support the allegations of the counterclaim; that introduced on behalf of the plaintiff tended to dispute those allegations. Upon all the issues presented by the counterclaim there is a substantial conflict in the evidence, especially with respect to the existence of the contracts, their terms, and the performance thereof. The trial court, after formal recitals, and after reciting that, "the plaintiff having introduced its evidence, and the defendants having introduced their evidence in rebuttal, and also in support of the counterclaim, and the plaintiff having introduced its proof in rebuttal of said counterclaim, and all the evidence having been adduced, and the respective parties having rested their case, and the same having been submitted to the court for decision, found: "That between the 1st day of September, 1902, and the 15th day of December, 1902, the plaintiff sold and delivered to the defendants, at the defendants' special instance and request, at Dillon, Montana, goods, wares and merchandise of the value of $ 945.35. That the defendants agreed to pay plaintiff therefor the said sum of $ 945.35, but that defendants refused and neglected to pay said sum, or any part thereof. That no payments have been made on said indebtedness and that there still remains due and owing the plaintiff from the said defendants the sum of $ 945.35, less the sum of $ 48.60, which the court finds to be due the defendants, under and by virtue of their said counterclaim, leaving now due the plaintiff the sum of $ 896.75." Upon this finding conclusions of law were made that the plaintiff was entitled to judgment for said sum last named, and judgment was entered accordingly, from which the defendants appealed.

The errors assigned by them are: That the court erred (1[222) in denying the defendants' motion for a new trial because of the errors at law occurring at the trial, insufficiency of the evidence to justify the decision, and that the decision and judgment are against law; (2) in finding that there was due plaintiff the sum of $ 896.75; (3) in not finding the facts alleged in the counterclaim in favor of the defendants, and as therein alleged by them; (4) in rendering judgment for the plaintiff, and that judgment ought to have been given for the defendants; and (5) that the decision and judgment in said cause are against law. No errors occurring at the trial are pointed out, discussed, or relied upon. The evidence with respect to the counterclaim being conflicting, we cannot say that the trial court should have found those issues in favor of the defendants. But it is quite apparent that the court wholly failed to find upon the issues of the counterclaim, and thus failed to find upon all the material issues raised by the pleadings. The law is well settled that the findings must be within the issues when compared with the pleadings, and must respond to, and cover, the material issues raised by the pleadings, and it is immaterial whether the issues arise upon allegations in the complaint and denied in the answer, or upon an affirmative defense pleaded in the answer, or upon a counterclaim, denied or treated as denied by the plaintiff. (Hayne, New Trial and Appeal, section 240; 2 Spelling, New Trial, section 591.) No judgment can properly be rendered until there is a finding upon all the material issues.

But the first question presented is whether the assignment of errors is sufficiently broad to permit us to review such failure to find. We are of the opinion that the assignment, that the decision is against law, is sufficient to present the question for review. The Supreme Court of California said:

"Whatever else may be meant by the expression 'decision against law,' we think there is no doubt that it includes a case where the decision is based upon findings which do not determine all of the material issues of fact raised by the pleadings." (Knight v. Roche, 56 Cal. 15.)

In Spotts v. Hanley, 85 Cal. 155, 24 P. 738, it was said:

"We pass then to the proposition advanced by the appellant in his reply brief, viz., that there is no finding upon a material issue raised by the pleading, in this; that the answer pleads the Plate judgment is an estoppel against the plaintiff, and that there is no finding whether it is or is not a bar to the plaintiff's recovery. As one of the grounds given in the notice of motion for a new trial is that the decision is against law,' the point can be considered on this appeal."

In Brison v. Brison, 90 Cal. 323, 27 P. 186, it is said:

" When, upon the trial of a case, the court renders its decision without making findings upon all the material issues presented by the pleadings, it is held that such decision can be reviewed upon a motion for a new trial. In such a case there has been a mistrial, and the decision, having been rendered before the case has been fully tried, is considered to have been a decision 'against law.'"

While the assignment is not as specific and definite as we would like to see assignments made, yet we think the failure of the court to find upon all the material issues raised by the pleadings is sufficiently pointed out to authorize us to review the question. The issues presented by the counterclaim were material, and...