Henderson v. Reynolds

110 P. 979 | Or. | 1910

Opinion by

Mr. Chief Justice Moore.

1. It is contended that the findings made by the court do not support the judgment, and, such being the case, an error was committed in awarding a recovery against the defendant. The rule is settled in this state that, when a cause is tried without the interposition of a jury, the findings of fact made by the court must be as extensive as, and include, all the material issues involved: Drainage District v. Crow, 20 Or. 535 (26 Pac. 845) ; Moody v. Richards, 29 Or. 282 (45 Pac. 777) ; Daly v. Larsen, 29 Or. 535 (46 Pac. 143). When, however, in its findings of fact the court adopts the theory of one of the parties, which hypothesis is necessarily antagonistic to, and decisive of, the assumption made by the adverse party, a statement of all the facts involved is not always essential: Lewis v. First National Bank, 46 Or. 182 (78 Pac. 990) ; Freeman v. Trummer, 50 Or. 287 (91 Pac. 1077) ; Naylor v. McColloch, 54 Or. 305 (103 Pac. 68).

2. The finding herein that the averments of the complaint are true and that the defendant is indebted to plaintiff in the sum of $333.33 might seem to negative the allegations of the answer in respect to the defense of accord and satisfaction. The statement of the indebtedness thus noted, though made as a finding of fact, is only a conclusion of law without the specification of the particular facts on which the deduction is based. In Kane v. Rippey, 22 Or. 299, 302 (29 Pac. 1005, 1006), the court, referring to a similar deduction, says: “These are not findings of fact, but naked legal conclusions.” To the same effect, see, also, Oregon Auto-Dispatch v. Port. Cordage Co., 51 Or. 583, 588 (94 Pac. 36: 95 Pac. 498).

The answer practically admits the averments of the second cause of action, respecting the performance of plaintiff’s services, but alleges an accord and satisfaction in full settlement of the plaintiff’s demands. This allegation having been denied in the reply, the issue thus formed was material, and the finding that the defendant is indebted to the plaintiff in the sum of $333.33 does not, in our opinion, necessarily dispose of the cause.

Assuming that the allegations of the complaint were admitted by the answer so that specific findings of fact conformable to the averments of plaintiff’s primary pleading were unnecessary, the failure to find in relation to the alleged payment necessitates a reversal of the judgment, and a new trial, which are ordered.

Reversed.