Darling v. Miles
111 P. 702
Or.
1910
Check Treatment

Lead Opinion

Mr. Justice Eakin

delivered the opinion of the court.

1. Plaintiff contends that the findings of fact do not support the judgment, and to this we agree. Section 158, B. & C. Comp., provides that when an action is tried by the court, without the intervention of a jury, the decision shall state the facts found, and such decision shall be entered in the journal, and judgment entered thereon accordingly. The finding that “the sale was made without * * any fraudulent representations” only states a conclusion of law. To justify a conclusion to that effect it was necessary for the court to find whether or not defendant represented that he was the owner of the lot, free from incumbrance, and that its dimensions were as stated, with knowledge on defendant’s part that the representations were false or were made recklessly as of his own knowledge, without any knowledge of their truth; and if the court finds that the representations were so made it must also find whether plaintiff relied thereon to his injury: Cawston v. Sturgis, 29 Or. 331 (43 Pac. 656.) Finding adverse to plaintiff on at least one of these matters is necessary to support the conclusion that' there were no fraudulent representation, or to support a judgment to that effect.

2. This court has held in many cases that findings of fact must be made on all material issues necessary to support the judgment. See Wright v. Ramp, 41 Or. 285 (68 Pac. 731) ; Henderson v. Reynolds, 57 Or. 186 (110 Pac. 979), and cases therein cited.

3. Counsel for defendant urges that the proof fails to establish the elements of fraudulent representations alleged, but the case is not before us upon the evidence. The only means we have of knowing what was proved is from the findings of fact which are silent as to the elements urged here.

4. It is said in Drainage Dist. No. 4 v. Crow, 20 Or. 536 *597(26 Pac. 846), after quoting from said Section 158, B. & C. Comp.:

“The object of this statute was to enable the parties to have placed upon the record the facts upon which the right litigated depends as well as the conclusion of law. * * The facts found are conclusive upon the appellate court, but the conclusions of law are reviewable here on appeal.”

The facts found must justify the conclusions of law. Otherwise, they are abstract statements and not conclusions.

5. Error is also assigned as to the ruling of the court, excluding the cross-bill filed in this action, when the same was offered in evidence. It having been sworn to by defendant was admissible as evidence of any statements of fact, against his interests, contained therein that were relevant to the issues here as admissions of defendant. It contains statements tending to prove facts in issue, such as, that in the sale plaintiff supposed that the lot was 46.9 feet wide; that plaintiff did not receive the quantity of land he understood he was getting; that 15 feet in width had been taken from lot 6 for a public highway; and it was error to exclude it.

The judgment is reversed and remanded for a new trial.

Reversed.

Mr. Chief Justice Moore did not sit in this case.



Rehearing

Decided January 31, 1911.

On Petition for Rehearing.

[112 Pac. 1084.]

Opinion by

Mr. Chief Justice Eakin.

6. Upon motion for a rehearing respondent suggests that Article VII of the constitution, as amended, so enlarges the jurisdiction of this court that, where it can say from the record what findings should have been made, *598it shall make them itself, and that as the amendment is remedial it may apply to pending eases, and asks this court now upon a rehearing to consider the whole record, and to affirm the judgment of the court appealed from if it was such as should have been rendered, notwithstanding any error committed during the trial. In the construction of a statute it may be stated generally that, if a statute changes the remedy only, but does not destroy all remedy for the enforcement of a right, it is retrospective and applies to cases pending at the date of its enactment unless a contrary intent is manifest: Judkins v. Taffe, 21 Or. 89 (27 Pac. 221) ; Denny v. Bean, 51 Or. 180 (93 Pac. 693: 94 Pac. 503).

7. But a constitution always operates prospectively, unless it is clearly shown from the language used or the objects to be accomplished that the provision was intended to operate retrospectively, and such intent must be clearly established. 8 Cyc. 731, 745, and cases cited.

8. Not only is there nothing in the language of the amendment to indicate an intention to make it retroactive, but the clause, “upon appeal of any case to the Supreme Court either party may have attached to the bill of exceptions the whole testimony,” etc., has reference exclusively to appeals thereafter taken, as it contemplates preparation of the record at the time the bill of exceptions is signed. The matters to be so attached are not parts of the record until made so by certificate of the judge, and this is to be done at the election of one or the other of the parties to the appeal, and the provision is plainly prospective only.

9. In the opinion we stated that the case was not before us on the evidence for the purpose of determining whether the elements of fraud have been established, and counsel urge that the whole evidence is in the record, and we should have determined the facts. Even when *599the evidence is in the record it is not for the purpose of reviewing the findings of fact, but from which to' determine the merits of a motion for a nonsuit or for an instructed verdict.

10. Only errors of law are to be reviewed upon an appeal from a judgment.

The petition for a rehearing is denied.

Reversed: Rehearing Denied.