Cointe v. Congregation of St. John the Baptist
143 N.W. 180
Wis.
1913
Check Treatment
Winslow, C. J.

The opinion filed by the circuit judge is a very careful and comprehensive discussion of the facts shown by the evidence and of the law applicable to those facts. It has been of the greatest assistance to us in our consideration of the case, and we have inserted it in full in the statement of the case partly on that account. This, howéver, is not the only reason for setting it forth in full.

As has been said in the statement of the case, the findings of fact consist principally of a copy of the opinion. Considered as an opinion, the document is admirable and is really all that an opinion should be; considered as a response to the statutory requirement that the trial judge should state in his decision “the facts found by him” (sec. 2863, Stats.), it is all that such a response should not be. We say this the more readily because it was stated by appellant’s counsel on the argument that the so-called findings were drawn by one of their number and presented to Judge Hastings for signature. We have entire confidence that the counsel who drew them and the circuit judge who signed them will accept the criticism *417now made in tlie kindly spirit in which we shall endeavor to make it.

Whether the findings are drawn by the circuit judge personally or drawn by counsel at his direction and submitted to him for approval and signature, they should never consist of detailed recitation of merely, evidentiary facts. The facts referred to in the statute are the “ultimate” facts, i. e. the facts upon which the plaintiff’s right of recovery or the defendant’s right' to defeat a recovery necessarily depends. The difference between the two kinds of facts may perhaps best be shown by an illustration. In a personal injury action by employee against employer, the evidence may tend to show that the place in which plaintiff .worked was dark, that the floor was rough or insecure, that there was a concealed trap door with insufficient hinges or a rotten barrier, and numerous other facts. These facts are all evidentiary. The ultimate fact is that the employee was furnished an unsafe place to work. If such an action were tried by the court, the findings of fact should not contain a recitation of what this witness or that witness testified as to the darkness or the imperfect floor or the concealed trap door, but should contain a finding-of the ultimate facts, namely, that the place was an unsafe place to work, by reason of the fact that it was dark, or the floor rough, or otherwise. So in. fcüe present case the ultimate facts in issue were few and simple, namely: (1) Did the board of directors 'of the defendant corporation, either by majority vote or by unanimous vote of all, contract with the plaintiff for the construction of the well ? (2) If not, had the corporation, by the course of its business in the past, held out to the public that the pastor and bishop were its agents in the transaction of business, and authorized to make contracts of this nature on its behalf? (3) If not, then had the corporation accepted and made such beneficial use of the well that it has ratified the unauthorized acts of its officers in causing it to *418be dug. The amera to these questions are the final inferences of fact which are to be drawn from and are the logical result of the subordinate or merely evidentiary facts. Caywood v. Farrell, 175 Ill. 480, 51 N. E. 775; Kahn v. Central S. Co. 2 Utah, 371. They are none the less propositions of fact because they involve a legal proposition. Meyer v. SchoolDist. 4 S. Dak. 420, 57 N. W. 68.

The ultimateheta which a finding should contain are, generally speaking, the issuable facts which a pleading should contain (sec. 2846, Stats.), and practically the same as the facts which a special verdict should contain (secs. 2857, 2858, Stats.). In either case the statement of the ultimate fact frequently includes a legal conclusion from evidentiary facts, and in either case it should, generally speaking, be such a fact' that, if ii were to be successfully denied, the conclusion of liability or nonliability based upon the findings as a whole is untenable. Bliss, Code Pl. (3ded.) § 206; Calumet S. Co. v. Chilton, 148 Wis. 334, 135 N. W. 131.

-Jn the present case two or three typewritten pages would have sufficed to state the ultimate facts fully and completely, whereas ten printed pagos have been so used. We are moved to make these criticisms not .so much from any serious difficulty presented in the present case as from the fact that a number of cases have been presented to us recently where the findings have consisted of many pages of merely evi-dentiary facts, sometimes leaving grave doubt as to what ultimate facts the court really determined, thus entailing upon us much tedious and unnecessary labor. It would help us much if the trial judges, who under the statutes are responsible for the findings of fact, whether they personally draw them or not, would see to it in every case that their findings be confined to the ultimate facts as defined or attempted to be defined in this opinion.

Our only serious difficulty in the present case has resulted from the fact that while the findings of fact are substantially *419a copy of the opinion so far as they go, they stop abruptly at the beginning of the sentence, “But the question is, Is there a legal liability which the plaintiff can enforce?” At this point the so-called findings of fact cease, and the conclusions of law to the effect that there was no valid contract, no ratification, and no estoppel at once follow. The reason why the balance of the opinion was not incorporated in the findings is not clear, unless it was thought that it consisted entirely of a discussion of the law. This, however, is not the fact, for it contains in addition to the legal propositions some very important propositions of fact, namely, the propositions that the plaintiff knew that it was necessary that all the directors should authorize the digging of the well, knew that they had not done so, did not rely upon any apparent authority in the pastor to make the contract, and proceeded with the work relying only on the influence and authority of the pastor and bishop to secure his pay. If the circuit judge omitted these propositions or sanctioned their omission because he had become satisfied that they were not' sustained by the evidence, the question presented as to what his conclusion really was on the issue of estoppel might be doubtful. On consideration of the conclusions of law, however, it seems that this could hardly be the case, and we are convinced from the whole record that the conclusions of fact on this subject expressed by him in his opinion remained his conclusions of fact when he signed the findings. In fact it is difficult to see how on any other basis he could liave reached the conclusion of law that there was no estoppel.

So far as the so-called findings contain findings of ultimate or evidentiary facts, they seem to us to be sustained by the evidence, and on the whole we think they fairly sustain the conclusions of law. The fact that there was no contract made in the manner required by statute is not seriously disputed. The fact that there was no holding out to the public that the pastor or bishop, or both, were the general agents of *420the corporation, authorized to transact such business and make such contracts, seems hardly open to question under the evidence. The conclusion that there was no ratification resulting from the fact that the well was, by the pastor’s direction, connected with the water pipes of the three parish buildings and the water used thereafter, is amply justified by the principles laid down in the case of Manitowoc S. B. Works v. Manitowoc G. Co. 120 Wis. 1, 97 N. W. 515.

By the Oourt. — Judgment affirmed.