110 Kan. 608 | Kan. | 1922
The opinion of the court was delivered.' by
The defendant appeals from a judgment against him cancelling the assignment of a one-tenth interest in an oil and gas lease which assignment is alleged to have been procured by fraud practiced by the defendant on the plaintiffs.
“7. Did the acts of the plaintiff corporation and plaintiff partnership subsequent to the execution and delivery of the contract that was returned to Strauss, constitute ratification, acquiescence or estoppel?”
In Lumber Co. v. Russell, 93 Kan. 521, 525, 144 Pac. 819, this court said:
“The defendants submitted special questions of fact to be answered by the court, which the court refused to answer, but made findings of fact and conclusions of law separately. This is urged as error. The submission of special questions may be fairly construed as a request to make special findings of fact and conclusions of law as provided by section 297 of the civil code, but the court is not required to answer special questions. It is the duty of the court, on request, to make separate findings of fact and conclusions of law as was done in this case.”
“Plaintiffs in error complain of an alleged failure, or refusal, of the court to state its findings of fact and conclusions of law separately . . . This request was made in a particular manner by the defendants below, and fourteen special questions were submitted. It is not necessary, or customary, for a party to a suit to submit questions of fact when the trial is to the court without a jury, as it is especially required where the trial is to a jury, and special findings of fact are desired. It is the usual and proper practice simply to make the request of the court to make such separate findings of fact and conclusions of law upon all material points involved in the case, which request should be granted.”
This, however, is not the most serious objection to the questions submitted. They constituted a cross-examination of the court on the findings made. Not one of them, except the one that has been quoted, asked the court to find upon any ultimate fact upon which judgment could be based, and each of the other questions submitted asked the court to detail some part of the evidence that had been introduced. The judgment #of the court must have been that the acts of the plaintiffs did not constitute ratification, acquiescence or estoppel. The court could very properly have found on the matter of ratification, but it was not error to refuse to answer the question submitted. The court was not compelled to submit to a cross-examination under the guise of a request for additional findings of fact.
Twelve assignments of error are presented, and some of those are divided into a number of heads. The abstract does not comply with the rules of the court; the appeal might well be dismissed for that reason. However, every proposition advanced by the defendant has been considered, and the conclusion has been reached that no reversible error was committed by the trial court.
The judgment is affirmed.