83 Wash. 376 | Wash. | 1915
On the 25th day of April, 1912, plaintiffs and defendant entered into a written contract for the sale of the merchantable fir timber on certain lands belonging to the plaintiffs, in consideration of the payment of two dollars per thousand feet. The material parts of the contract follow:
“It is agreed that the amount of timber upon the said land is 10,825,000 feet; said timber shall be paid for by the party of the second part as the same shall be cut and logged, the mill scale shall be taken for the purpose of determining approximately the amount of timber logged each month, but the amount of timber to be taken and paid for is agreed to be 10,825,000 feet as aforesaid. All timber logged each month shall be settled and paid for by the party of the second part on the 15th of the following month until said timber is fully paid for. The party of the second part, his successors and assigns agree to take and remove said timber and pay for the same as above set forth within five years from the date of this contract. . . . The sum of two thousand dollars shall be deposited by the party of the second part in the Capital National Bank of Olympia, to the credit of the guardian of the minor children of Ambrose Fred Colvin and Anna Colvin upon the execution of this contract, and said two thousand dollars cash shall be credited to the party of the second part on the last one million feet of timber cut.”
Defendant built a logging road into the north side and proceeded to log the land, and has removed all but 390,000 feet, as estimated by witness Moore, a cruiser who was put upon the stand by plaintiffs. Defendant had cut some cedar and ties and spars that were not scaled at the mill, and had removed his active logging operations from the north side. Plaintiffs then brought this action praying for an accounting and a cancellation of the contract. They have endeavored to maintain their action as a suit in equity. The court denied a cancellation of the contract, and an appeal has been taken from the order.
Whatever may have been the original theory of the plaintiffs, it seems to us that this is not a suit in equity, but a simple action at law for the amount due on contract. There is neither allegation of fact nor proof of fact to sustain the action as an equitable suit. It is true that plaintiffs, in demanding that which they conceived to be their due, have said that an accounting is necessary and have prayed' for an accounting. Under the contract, plaintiffs were entitled to
In Knowles v. Rogers, 27 Wash. 211, 67 Pac. 572, an action was brought as a law action. After trial, “the action was purely equitable.” So in this case, there was no pretense of reliance upon equitable principles in the trial of the
Defendant has been quick to appreciate the legal situation of the plaintiffs, and in the court below and in this court has insisted that the trial judge should have made findings of fact and conclusions of law. To save the point, findings and conclusions were proposed and were refused. Counsel for defendant has brought his case squarely within the following decisions of this court: Bard v. Kleeb, 1 Wash. 370, 25 Pac. 467, 27 Pac. 273; Kilroy v. Mitchell, 2 Wash. 407, 26 Pac. 865; Wilson v. Aberdeen, 25 Wash. 614, 66 Pac. 95. We would be glad to hold, if it were possible to do so in the light of our previous decisions and Rem. & Bal. Code, § 367 (P. C. 81 § 645), that the refusal of the court to make findings was error without prejudice, but the statute and the duty that is upon us to follow rules of practice and procedure arising out of the construction of statutes compels a holding that the error was prejudicial to the right of the defendant.
Findings, under Rem. & Bal. Code, § 368 (P. C. 81 § 647), except as qualified as to their weight by § 1736 (P. C. 81 § 1225), stand as the verdict of the jury. In one of our earlier cases, it is said:
“Judgments of law are founded upon general or special verdicts of juries, or findings of the court which take the place thereof. Without such verdicts or findings, there is nothing to support the judgment.” Kilroy v. Mitchell, supra.
The purpose of § 367 is to permit, if not to encourage, appeals without bringing up a statement of facts, for, as is said in the Kilroy case just cited, “a judgment at law will usually stand or fall upon the verdict or findings, without any reference to the evidence as a whole.” The first ruling upon the question before us is found in Bard v. Kleeb, supra. Our court reviewed the California cases and noted the confusion that had arisen in that state by reason of the courts’
“We have the opportunity, to shape the practice in this state so that our successors may not have to repeat the helpless plaint of the California supreme court,”
and it was accordingly held that a recital in a judgment that “the court finds the matters and things set forth in the complaint are true” was not a compliance with the statute. In a later case, Wilson v. Aberdeen, 25 Wash. 614, 66 Pac. 95, the statute was held to be mandatory. So far as we are informed, there has been no departure from the rule of these cases in law. actions.
The point raised by counsel for defendant is well taken. But it does not follow that the action will be reversed and remanded for a new trial. While the statute, Rem. & Bal. Code, § 307 (P. C. 81 §303), has never been invoked, so far as we know, in a case like this, it seems to us to be peculiarly applicable. It is provided:
“The court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.”
In the case at bar the testimony has been taken. No right of either party will be conserved by a new trial. The case fails here because the refusal of the trial judge to make findings “affect(s) the substantial rights of the adverse party.” This can be corrected, if the case is remanded with instructions to the lower court to make findings and enter a judgment thereon. There is no reason in law or sound sense for a retrial. The judge had and will have the whole testimony before him and he can find, presumptively at least, the same facts and draw the same conclusions as he would if the testimony were taken over again. We have, therefore, determined that this case shall be remanded to the court from whence it came, with instructions to the trial judge to cause
Crow, C. J., Gose, Morris, and Parker, JJ., concur.