file his findings of the facts until after the judgment was entered; it was held not to be error.52 But a judge cannot change his findings of facts in a material particular after the entry of judgment on the findings and the adjournment of the term."

53

§ 1161. Findings on contract. In an action on contract, the question of waiver being within the issue, and the facts being all before the referee, it was held that his finding on the question should be sustained, although the question was not distinctly raised by the pleadings. In an action to recover judgment against a municipal corporation for work done on contracts, and warrants issued therefor, if the court finds that the warrants issued were issued after the accounts under the contract were audited, and were issued in consideration thereof, it is a sufficient finding that the warrants were drawn for the amount due on the contracts.55 Where the defendant's liability depends entirely upon the fact of his indebtedness to a third party, the fact of his indebtedness is the only fact to be found.56 It is not necessary to find the items of debit and credit, but just the balance due.57 When judgment is for defendant it is not necessary to find as to the legality of an assignment of the claim to plaintiff.58

§ 1162. The same-Conversion. The legal effect of findings for the defendant, on the question of the plaintiff's right to the property, was to entitle the defendants from whom the property was taken to its restoration.59 A finding that hay, alleged to have been converted, was worth twenty dollars a ton, without finding the number of tons converted, does not entitle plaintiff to a judgment.6°

§ 1163. The same-Ejectment. If the court, in ejectment, finds that the defendant has no right or title to the premises, or to the possesion thereof, and plaintiff is a tenant in common in the premises with the estate of a deceased cotenant, and the

63

parties stipulated during the trial, as a substitute for evidence on this point, that the defendant entered under a deed from the administrator of the deceased cotenant, and by is permission, the finding is contrary to the evidence.61 When title is found in one party, the court is not required to find the facts constituting the other party's claim of title, but, if requested, the better practice would be to make such finding.62 A finding in an action of ejectment that the plaintiff is the owner of the land in controversy is a sufficient finding that the defendants are not the owners. A finding that the court finds in defendant's favor on all the issues of fact, and that all the allegations of his cross-complaint are true, is not sufficient to support a judgment quieting defendant's title, for full findings of fact should be made.64 Where the court finds simply that the defendant was in possession at the date of the action, and that he wrongfully withheld the possession of the same from the plaintiff, it must be presumed at least in favor of the judgment that this holding was in subordination to the legal title. The findings should state explicitly whether defendant was affected with notice of the fraud of those through whom he claimed title, where notice of such fraud is material. Where a party is in possession of an inclosed portion of a tract, claiming the whole under a deed, it is error in the court to find a constructive possession to the land outside of the inclosure where the grantor in the deed had not actual possession of the whole."7 Where the right to use land as an alleyway is based upon a plea of estoppel, the court should find thereon.68

65

66

§ 1164. Facts, how found.-Where an answer does not deny. the allegations of the complaint, but sets up new matter as a defense, a finding that the facts stated in the complaint are true is not a finding upon all the issues. The court should find upon the new matter. And until a finding is made, judgment

69

61 Carpentier v. Small, 35 Cal. 346. 62 Burke v. Table Mountain Water Co., 12 Cal. 403; Meador v. Parsons, 19 Cal. 294; Merrill v. Chapman, 34 Cal. 251.

63 Coates v. Cleaves, 92 Cal. 427, 28 Pac. 580. In ejectment, failure to find as ground for reversal. See Christy v. Spring Valley Water Works, 81 Cal. 541, 21 Pac. 307; Himmelman v. Henry, 84 Cal. 104, 23 Pac. 1098.

64 Shattuck v. Costello, 8 Ariz. 22, 68 Pac. 529.

65 Sharp v. Daughney, 33 Cal. 505; Chouquette v. Barada, 23 Mo. 331. 66 Chouteau v. Nuckolls, 20 Mo. 442.

67 Walsh v. Hill, 38 Cal. 481. 68 Banning v. Kreiter, 153 Cal. 33, 94 Pac. 246.

69 People v. Forbes, 51 Cal. 628; Phipps v. Harlan, 53 Cal. 87; Lack

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may not properly be entered;70 also, such finding must be suffi cient to sustain the judgment." An omission to find upon a counterclaim is error.72 A finding which states only general conclusions, leaving it doubtful what particular facts were established, is defective, and a refusal to amend it on application is error. The finding of facts must be within the issues raised by the pleadings; and must cover all the issues, whether evidence upon an issue is introduced or not.76 Findings may refer to the pleadings, but the reference should be direct, and so as to leave no doubt." Where facts are so obscurely found, or are so blended with legal conclusions as to render it doubtful whether the facts are only hypothetically stated, it will be disregarded as a finding of fact.78 Only the ultimate facts should be found, and not the evidence."

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§ 1165. Facts left to inference. To justify the supreme court in inferring a material fact not expressed in the findings, from others which are expressly found, it must appear that the fact to be inferred follows inevitably from the facts found; that upon every conceivable theory of the case, the non-existence of the fact to be inferred is inconsistent with the facts found.80 A finding that the owner of premises had knowledge of certain improvements, upon which a mechanic's lien is based, implies such knowledge as is specified by the code to uphold such judgments.81 The facts found and the conclusions of law must be separately stated. The object of the section of the code relating to findings is to do away with the doctrine of implied findings as

82

mann v. Kearney, 142 Cal. 112, 75 Pac. 668.

70 Dieterle v. Bekin, 143 Cal. 683, 77 Pac. 664.

71 Jennings v. Frazier, 46 Or. 470, 80 Pac. 1011.

72 Baggs v. Smith, 53 Cal. 88. 73 Polhemus v. Carpenter, 42 Cal. 375; Ladd v. Tully, 51 Cal. 277.

74 Morenhout v. Barron, 42 Cal. 591; Devoe v. Devoe, 51 Cal. 543; Allison v. Darton, 24 Mo. 343; Farrar v. Lyon, 19 Mo. 122.

75 Bosquett v. Crane, 51 Cal. 505; Rice v. Inskeep, 34 Cal. 225; Downing v. Bourlier, 21 Mo. 149.

76 Speegle v. Leese, 51 Cal. 415.

77 McEwen v. Johnson, 7 Cal. 258;

Breeze v. Doyle, 19 Cal. 101. See, also, Kelley v. McKibben, 53 Cal.

13.

78 Figg v. Mayo, 39 Cal. 262. 79 Pico v. Cuyas, 47 Cal. 174. But see Coveny v. Hale, 49 Cal. 552.

80 Emmal v. Webb, 36 Cal. 197. 81 Pacific Lumber Co. v. Wilson, 6 Cal. App. 561, 92 Pac. 654; Cal. Code Civ. Proc., § 1192.

82 Cal. Code Civ. Proc., § 633.

83 Cal. Code Civ. Proc., §§ 632, 633; Idaho Rev. Codes, §§ 4406, 4407; Mont. Rev. Codes, $$ 6763, 6764; Nev. Comp. Laws, § 3277; Or. B. & C. Codes, § 406; Utah Rev. Stats., §§ 3169-3177; Wash. Bal. Codes, § 5029; Wyo. Rev. Stats., § 3660.

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based on the former statute, and to separate, for the facility of investigation, questions of fact and law. If the facts are found, it must affirmatively appear that they support the judgment.85 If the priority to the right to use certain water is not put in issue, the court may properly refuse to find on the same.s

87

86

§ 1166. Findings conclusive. The finding of a court will not be disturbed, unless the evidence was such that if the question at issue had been submitted to a jury, and they had rendered a verdict in accordance with the finding, the court would have set it aside as contrary to evidence. The application of the rule that findings will not be disturbed on appeal, when there is a manifest conflict in the evidence, depends in no measure upon the question whether any of the witnesses are interested in the event of the suit. The credit to be given to their testimony, however attacked, must be determined in the court below.88

If no motion is made for a new trial, the finding of the court and verdict of the jury are conclusive as to the facts.89 Or where they are not excepted to.90

Where the evidence is substantially conflicting upon any particular issue, a finding thereon will not be disturbed on the ground of the insufficiency of the evidence to justify it. But where there is no substantial conflict in the evidence and the findings are against the weight of the evidence, the judgment founded on such findings will be reversed.92

84 Dowd v. Clarke, 51 Cal. 262. For decisions under the former statute, see Shelby v. Houston, 38 Cal. 410, and cases cited, 321.

85 Northern Pacific R. R. Co. v. Reynolds, 50 Cal. 90. It will be presumed upon appeal that the inference made by the trial court was one that will uphold rather than defeat the judgment. Breeze v. Brooks, 97 Cal. 72, 31 Pac. 742, 22 L. R. A. 256; Gould v. Eaton, 111 Cal. 639, 52 Am. St. Rep. 201, 44 Pac. 319.

86 Kent v. Richardson, 8 Idaho, 750, 71 Pac. 117.

87 Moore v. Murdock, 26 Cal. 514. 88 Putnam v. Lamphier, 36 Cal. 151; consult "Appeal."

89 Brown v. Tolles, 7 Cal. 399; Garwood v. Simpson, 8 Cal. 108; Duff v.

Fisher, 15 Cal. 379; Gagliardo v. Hoberlin, 18 Cal. 395; Pico v. Cuyas, 47 Cal. 174.

90 Gay v. Moss, 34 Cal. 125. But see Cal. Code Civ. Proc., § 647.

91 Hoyt v. Selby Smelting Co., 90 Cal. 339, 27 Pac. 288. To same effect, Borderre v. Den, 106 Cal. 594, 39 Pac. 946; Raynor v. Drew, 72 Cal. 307, 13 Pac. 866; Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, 14 Pac. 379; Myers v. Tibbals, 72 Cal. 278, 13 Pac. 695; Ingalls v. Austin, 8 Mont. 333, 20 Pac. 637; Welland v. Williams, 21 Nev. 230, 29 Pac. 403; Mouat v. Hilderbrand, 15 Colo. 382, 24 Pac. 1042; Heilbron v. Kings River etc. Canal Co., 76 Cal. 11, 17 Pac. 933. 92 Buttz v. Colton, 6 Dak. 306, 43 N. W. 717.

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§ 1167. Findings contrary to admissions in the pleadings.-A finding contrary to facts admitted in the pleadings must be disregarded; and the judgment must follow such admissions."* But it is not objectionable because unsupported by any allegation of the pleadings, if it is a conclusion from other facts found and pleaded."5

§ 1168. Finding contrary to stipulation.-If the finding of a fact on a material point is contrary to a stipulation of the parties made in the course of the trial as a substitute for evidence, a new trial will be granted, on the ground that the finding is contrary to the fact as stipulated, and therefore unsupported by the evidence. Findings on facts that are stipulated in open court are unnecessary.97

96

§ 1169. Findings are not necessary when the facts are admitted or not denied in the pleadings;98 or when judgment is rendered on the pleadings;99 or in case of nonsuit.100 If illegal evidence is admitted on the trial, it is not error for the court to refuse to find a fact proved by such evidence.101 If the judg ment is supported by findings supported by the evidence, it is immaterial that there are other findings which the evidence does not support.102

Where the parties stipulate in writing as to what the facts are, and file such stipulation in the answer, it is in all substantial respects the equivalent of admitting them in the pleadings. Such agreed statement takes the place

93 Bradbury v. Cronise, 46 Cal. 287. 94 McDonald V. Mission Valley Homestead Assoc., 51 Cal. 210. See, also, Traverso v. Tate, 82 Cal. 170, 22 Pac. 1082; Silvey v. Neary, 59 Cal. 97; White v. Douglass, 71 Cal. 115, 11 Pac. 860; Campe v. Lassen, 67 Cal. 139, 7 Pac. 430; Estate of Doyle, 73 Cal. 564, 15 Pac. 125; Hendy Machine Works v. Pacific Cable Construction Co., 99 Cal. 421, 33 Pac. 1084.

95 Hunt v. Davis, 135 Cal. 31, 66 Pac. 957.

96 Carpentier v. Small, 35 Cal. 346. 97 Boyd v. Liefer, 144 Cal. 336, 77 Pac. 953.

98 Swift v. Muygridge, 8 Cal. 445; Fox v. Fox, 25 Cal. 587; Burnett v.

and serves all the purposes of

Stearns, 33 Cal. 468; Downer v. Sexton, 17 Wis. 29; Carlisle v. Mulhern, 19 Mo. 56; Gruhn v. Stanley, 92 Cal. 86, 28 Pac. 56; Johnson v. Vance, 86 Cal. 128, 24 Pac. 863; Drinkhouse v. Spring Valley Water Co., 87 Cal. 253, 25 Pac. 420; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883; State v. Rocky Mountain Tel. Co., 27 Mont. 394, 71 Pac. 311; Jennings v. Frazier, 46 Or. 470, 80 Pac. 1011.

99 Taylor v. Palmer, 31 Cal. 242; Nosler v. Haynes, 2 Nev. 56.

100 Gilson R. M. Co. v. Gilson, 47 Cal. 597.

101 Hutchings v. Castle, 48 Cal. 152. 102 McKibbin V. McKibbin, 139 Cal. 448, 73 Pac. 143.