Moody v. Richards

Opinion by Mr. Justice Moore. 1. The court having failed to find that the defendant agreed or promised to repay the difference between the values of “number one” wheat and the quality so delivered and graded, counsel for the defendant contend that the findings do not support the judgment; while plaintiff’s counsel insist that no request having been made for more specific findings, the judgment is not subject to review on appeal. The right to a trial by jury may be waived by the [285] parties to an action, and the issue of fact tried by the court, which must state the facts found, and such findings shall be deemed a verdict, and, upon being filed with the clerk during the term or within twenty days thereafter, judgment may be entered thereon: Hill’s Code, §§ 218-220. If the statement be considered as a general verdict, it must be presumed that every material issue made by the pleadings has been passed upon (Shmit v. Day, 27 Or. 110, 89 Pac. 870,) but Judge Thompson in his work on Trials, § 2658, in speaking upon this subject says: “Such a finding of facts is in the nature of a' special verdict, and is interpreted and its sufficiency is determined by the same rule.” The statute making it incumbent upon the court to state the facts found, the consent of a party to submit his cause for trial without the intervention of a jury must be construed as a request for a special verdict, which necessitates a finding upon all the material issues involved in the action. 2. Where any or all of the facts are admitted by pleadings, there is no issue thereon for trial, and in such case, so far as admitted, findings of fact are unnecessary: Luce v. Isthmus Transit Railway Company, 6 Or. 125 (25 Am. Rep. 506); Fink v. Canyon Road Company, 5 Or. 302. It has also been held that if the parties agree as to the facts, and so stipulate, there is no issue for trial except as to the conclusions of law dedueible therefrom, and hence a statement of facts by the court is unnecessary, (Frush v. East Portland, 6 Or. 282,) but the correctness of [286] the rule here announced may well be doubted, for the stipulations are no part of the judgment roll, except when made so by a bill of exceptions, (Umatilla Irrigation Company v. Barnhart, 22 Or. 389, 30 Pac. 37,) and it would seem to follow that a judgment entered in an action tried without the intervention of a jury, in which no statement of the finding of fact by the court had been made or filed with the clerk, would have no foundation upon which to rest. 3. It has been repeatedly held by this court that it is necessary for the trial court in an action tried before it to state the findings of fact upon all the material issues involved in the pleadings: Fink v. Canyon Road Company, 5 Or. 302; Weissman v. Russell, 10 Or. 73; Drainage District v. Crow, 20 Or. 535 (26 Pac. 845); Pengra v. Wheeler, 24 Or. 532 (34 Pac. 354); Jameson v. Coldwell, 25 Or. 199 (35 Pac. 245). The rule to be extracted from these decisions would seem to imply that the court should find and state the facts constituting the primary right of action or defense, the corresponding duty and breach thereof, and the injury resulting therefrom, and, as a conclusion deducible from the facts so found, the law applicable thereto. ' The findings when so made, filed, and entered of record in the journal, become a part of the judgment roll, and constitute the foundation which supports the judgment. The alleged promise of the defendant to repay the difference between the value of “ number one” wheat and that of an inferior grade at the time [287] of its delivery was material, for the declaration must allege a promise on the part of the defendant, or it will be bad even after verdict (2 Encyclopedia of Pleading and Practice, 997), and hence it could not be stricken from the complaint without leaving it insufficient to support the action: Hill’s Code, § 95. This allegation having- been denied in the answer, raised a material issue upon which the parties were entitled to a finding by the' court, and for the want thereof its findings failed to show a primary right of action, and no conclusion of the defendant’s liability is deducible therefrom. 4. It is true the defendant did not request the court to make more specific findings, nor do we think it was incumbent upon him to do so, for if a request were essential to obtain a statement of the facts found upon a material issue, it would necessarily follow that without such request the court could disregard the plain provisions of the statute, and refuse to make any statement of its findings. In Noland v. Bull, 24 Or. at page 479, (33 Pac. 983,) Lord, C. J., in commenting upon the effect of the findings made by the trial court, says: “ Preliminarily, it is claimed that the trial court failed to make certain findings of fact which' the pleadings show were material and necessary. If that is so, the defendant should have applied to the trial court to make such findings, and if it refused, he could have excepted to the ruling, and brought the matter in an appropriate way to the attention of this court,” and cites in support thereof the opinion of Thayer, [288] C. J., in Hicklin v. McClear, 18 Or. at page 138 (22 Pac. 1057). The case to which reference is made treats of the failure of the court to make material findings upon the evidence before it, and not to findings upon material issues, and as the learned chief justice in the principal case does not concede that there had been a failure to make findings upon material issues involved in the pleadings, we must conclude he referred to the failure to find upon material evidence only. The finding upon a material issue in an action at law may be dependent upon the existence of several subordinate issues of fact, but if the trial court makes a finding upon the ultimate fact as broad as the issue involved, the statement of facts so found, in the absence of a request for more specific findings upon the probative facts, will be held sufficient to support the judgment: Luse v. Isthmus Transit Railway Company, 6 Or. 125; Hicklin v. McClear, 18 Or. 138 (22 Pac. 1057); Umatilla Irrigation Company v. Barnhart, 22 Or. 389 (30 Pac. 37). The complaint having alleged an express promise to repay, the issue in question became material, and a finding thereon indispensable without any request therefor, aside from the agreement to submit the cause for trial by the court without the intervention of a jury, and the court having failed to state such finding of fact, no foundation was laid upon which the judgment could rest, and hence it is reversed, and a new trial ordered. Reversed.