an old debt, an additional finding that the transaction was not in the course of ordinary business is a conclusion of law incorrectly drawn from the facts and inconsistent therewith. 150 The total amount found, on sufficient evidence, to have been expended on certain land, is not affected by an erroneous finding as to the price per acre.151 § 1180. Presumptions. That the findings were supported by the evidence,152 and that evidence was competent and sufficient.153 But where there is no issue tendered in the pleadings upon a material matter, the court or jury will not be presumed to have found on such matter.154 Where there is no finding of facts incorporated in the case, the presumption is that the decision thereon was correct.155 A finding that certain words in a contract were attempted to be erased does not imply that they were erased. 158 § 1181. Separate statement in findings.-In giving the decision, the facts found and the conclusions of law must be separately stated. Judgment upon the decision must be entered accordingly.157 A finding in foreclosure of mechanic's lien, that no written contract was made, on the grounds that the contract which was written, signed, and recorded, was void, cannot be sustained, because the facts found-to-wit, that such a contract had been attempted-and the conclusions of law should both be stated.158 A recital in the decree that the material allegations of the complaint are sustained by the testimony cannot be substituted for a separate finding.159 The findings and conclusions need not be under separate covers, but must be under separate 150 White v. Wise, 134 Cal. 613, 66 Pac. 959. 151 Pearsall v. Henry, 153 Cal. 314, 95 Pac. 154. 152 Owen v. Morton, 24 Cal. 377; Jenkins v. Frink, 30 Cal. 586, 89 Am. Dec. 134; Horton v. Dominguez, 68 Cal. 642, 10 Pac. 186. 153 Sears v. Dixon, 33 Cal. 326; Kendall v. Waters, 68 Cal. 26, 8 Pac. 510; Story v. Black, 5 Mont. 26, 51 Am. Rep. 37, 1 Pac. 1; Spect v. Spect, 88 Cal. 437, 22 Am. St. Rep. 314, 26 Pac. 203, 13 L. R. A. 137. 154 Gifford v. Carvill, 29 Cal. 589; Bernal v. Gleim, 33 Cal. 668. 155 Viele v. Troy etc. R. R. Co., 20 N. Y. 184; Matthews v. Mayor of New York, 14 Abb. Pr. 214. Consult "Appeal," post chap. LXIX. 156 Sullivan V. California Realty Co., 142 Cal. 201, 75 Pac. 767. 157 Cal. Code Civ. Proc., § 633; Wash. Bal. Codes, § 5029. 158 California Iron Const. Co. v. Bradbury, 138 Cal. 328, 71 Pac. 346; affirmed, 138 Cal. 333, 71 Pac. 617. 159 Musselman v. Musselman, 140 Cal. 197, 73 Pac. 824. titles,160 unless the case is tried solely on equitable questions.161 Facts must be found and set forth separately from the conclusions of law.102 § 1182. Sufficient statement.-A finding of facts which is a mere recital of evidence, and does not conclusively establish the fact in issue, is not sufficient.163 And the findings should warrant the conclusions of law and judgment thereon.164 The facts, and not the evidence, should be set out.165 If probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is sufficient.166 It is not necessary that findings should be in the exact language of the pleadings, or in any particular form.167 Facts found should not be mingled with argument.168 An opinion is not a finding;169 but conclusions from facts are.170 The opinions of the court, the reasons of the judge, or the evidence form no part of the findings.171 Where the fact found by the judge, and the very one, in his opinion, upon which the case turns, is wholly unsupported by evidence, the appellate court will not treat such finding as surplusage in 160 Shephard v. Gove, 26 Wash. 452, 67 Pac. 256. 161 Knowles v. Rogers, 27 Wash. 211, 67 Pac. 572. 162 Bryan v. Maume, 28 Cal. 238; Church v. Erben, 4 Sandf. 691; Peck v. Yorks, 14 How. Pr. 416; Ragan v. McCoy, 26 Mo. 166; Sutter v. Streit, 21 Mo. 157. See, also, Sharp v. Wright, 35 Barb. 236; Foot v. Murphy, 72 Cal. 104, 13 Pac. 163; Burton v. Burton, 79 Cal. 490, 21 Pac. 847; Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419; Fisk v. Patton, 7 Utah, 399, 27 Pac. 1. 163 Coveny v. Hale, 49 Cal. 552; Thomas v. Sprague, 12 Mich. 120. 164 Pearce v. Burns, 22 Mo. 577; Pearce v. Roberts, 22 Mo. 582; State v. Ruggles, 23 Mo. 339. See, also, Tomlinson v. Mayor of New York, 23 How. Pr. 452; Rogers v. Beard, 20 How. Pr. 98. 165 Heredink v. Holten, 16 Cal. 103; Kalkman v. Baylis, 23 Cal. 303; Javens v. Harris, 20 Mo. 262; Murdoch v. Finney, 21 Mo. 138; Sutter v. Streit, 21 Mo. 157. 166 Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, 14 Pac. 379. See Bull v. Bray, 89 Cal. 286, 26 Pac. -873, 13 L. R. A. 576. Compare Perry V. Quackenbush, 105 Cal. 299, 38 Pac. 740; Gill v. Driver, 90 Cal. 72, 27 Pac. 61. 167 Millard v. Supreme Council etc. Legion of Honor, 81 Cal. 340, 22 Pac. 864; Clary v. Hazlitt, 67 Cal. 286, 7 Pac. 701. Consult, also, as to sufficiency of findings, Smith v. Mohn, 87 Cal. 489, 25 Pac. 696; Boskowitz v. Nickel, 97 Cal. 19, 31 Pac. 732; Kane v. Rippey, 22 Or. 299, 29 Pac. 1005; Thompson v. Russell, 1 Okla. 225, 32 Pac. 56. 168 Bryan v. Maume, 28 Cal. 238; Jones v. Block, 30 Cal. 227. 169 McClory v. McClory, 38 Cal. 575; Johnston v. San Francisco Sav. Union, 75 Cal. 134, 7 Am. St. Rep. 129, 16 Pac. 753; Board etc. of Yuma County v. Lovell, 20 Colo. 80, 36 Pac. 878. 170 Sears v. Dixon, 33 Cal. 326. 171 James v. Williams, 31 Cal. 311; Mills v. Thursby, 12 How. Pr. 417; Thomas v. Tanner, 14 How. Pr. 426; Magie v. Baker, 14 N. Y. 435. order to sustain the judgment on other findings, especially if the weight of testimony is against the other findings.172 The allegations of the complaint, being denied, and no proof thereon for either party being offered, it should be dismissed.173 § 1183. Sufficiency, test of.-The true test of the sufficiency of the findings is this: Would they answer if presented by a jury in the form of a special verdict ?174 Findings are sufficient when they cover all the issues made by the pleadings, whether supported by the evidence or not.175 It is sufficient if the findings are not repugnant to or inconsistent with the judgment.176 If findings support the judgment and conform to the theory of the prevailing party, they are sufficient; findings on the rejected theory being only necessary when requested for the purpose of reviewing the judgment. Findings of the court are equivalent to a special verdict of a jury, and must be as broad as the material issues.177 As to allegations of a verified complaint, not sufficiently denied, no findings thereon are necessary.178 1184. Waiver of error.-If a motion for nonsuit is denied at close of plaintiff's evidence, defendant waives his motion by introducing evidence, unless the motion is renewed at the close of the evidence.17 § 1185. Waiver of findings.-Findings of fact may be waived by the several parties to an issue of fact-1. By failing to appear at the trial; 2. By consent in writing, filed with the clerk; 3. By oral consent in open court, entered in the minutes. 18 On appeal, 172 Lockhart v. Mackie, 2 Nev. 294. 173 Idaho Placer Min. Co. v. Green, 14 Idaho 294, 94 Pac. 161. 174 Breeze v. Doyle, 19 Cal. 101. 175 Rice v. Inskeep, 34 Cal. 225; Garvey v. Lashells, 151 Cal. 526, 91 Pac. 498; Carstenbrook v. Wedderein, 5 Cal. App. 603, 91 Pac. 117; Everett v. Jones, 32 Utah, 489, 91 Pac. 360. 176 Sears v. Dixon, 33 Cal. 326; James v. Williams, 31 Cal. 211. See, also, Walker v. Brem, 67 Cal. 599, 8 Pac. 320; Withers v. Jacks, 79 Cal. 297, 12 Am. St. Rep. 143, 21 Pac. 824; Goodnow v. Griswold, 68 Cal. 599, 9 Pac. 837; Osment v. McElrath, 68 Cal. 466, 58 Am. Rep. 17, 9 Pac. 731; Winhaus v. Bootz, 92 Cal. 617, 28 Pac. 557; Grant v. Sheerin, 84 Cal. 197, 23 Pac. 1094. 177 Freeman v. Trummer, 50 Or. 287, 91 Pac. 1077. 178 Roussin v. Kirkpatrick, 8 Cal. App. 7, 95 Pac. 1123. 179 Barrow v. B. R. Lewis Lumber Co., 14 Idaho, 698, 95 Pac. 682. 180 Cal. Code Civ. Proc., § 634. As to waiver of findings, see Sav. etg. Soc. v. Thorne, 67 Cal. 53, 7 Pac. 36; Campbell v. Coburn, 77 Cal. 36, 18 Pac. 860; Western Lumber Co. v. Phillips, 94 Cal. 54, 29 Pac. 328; McGuire v. Drew, 83 Cal. 225, 23 Pac. 312; Fincher v. Malcolmson, 96 the party who asserts as error the failure of the court below to file findings of fact must make it affirmatively appear, by bill of exceptions or other appropriate method, that no waiver of findings had occurred, or the intendments must go to support the judgment.181 Where, however, findings are filed, but which do not include all the issues of fact involved in the case, no presumption of a waiver of findings can be indulged.182 A finding on a fact, though material to the issues, cannot be demanded, unless it appears from the testimony that it was involved." Findings are not needed in case of judgment upon pleadings or for failure to answer.184 And in any case the findings must support the judgment.185 183 § 1186. Amendment of findings.-The court, upon discovering an obvious mistake in favor of plaintiff in a conclusion of law, which it had overlooked, may, with plaintiff's consent, amend the same. 186 There is no decision by the court till written findings are made, regardless of oral statements as to how it would decide. 187 § 1186a. Exceptions to findings. It is proper to attack the court's findings of facts by specifications of insufficiency of the evidence to sustain them.188 A general exception to all of them is not sufficient,189 but separate exceptions designating the findings excepted to by numbers are sufficient without specifications of the grounds.190 Findings § 1187. Findings - How construed. cannot be detached from each other and considered piecemeal. They must be read as a whole, and not merely according to their numerical division.19 They are to be liberally construed in support of a Cal. 38, 30 Pac. 835; Eltzroth v. Ryan, 91 Cal. 584, 27 Pac. 932; Gordon v. Donahue, 79 Cal. 501, 21 Pac. 970. 181 Mulcahy v. Glazier, 51 Cal. 626; Smith v. Lawrence, 53 Cal. 34. 182 People v. Forbes, 51 Cal. 628; Majors v. Cowell, 51 Cal. 478. 183 Buckers Irr. etc. Co. v. Farmers etc. Co., 31 Colo. 62, 72 Pac. 49. 184 Sutherlin v. Bloomer, 50 Or. 398, 93 Pac. 135. 185 Bosquett v. Crane, 51 Cal. 505. 186 Merrill v. Miller, 28 Mont. 134, 72 Pac. 423. 187 Russell v. B. Schade Brewing Co., 49 Wash. 362, 95 Pac. 327. 188 Kenworthy v. Mast, 141 Cal. 268, 74 Pac. 841. 189 Peters v. Lewis, 33 Wash. 617, 74 Pac. 815. 190 Burrows v. Kinsley, 27 Wash. 694, 68 Pac. 332. 191 Mott v. Ewing, 90 Cal. 231, 27 Pac. 194; Winterburn v. Chambers, 91 Cal. 170, 27 Pac. 658. judgment.12 They should be reconciled and harmonized wherever possible, and should not be declared contradictory except where absolutely necessary.193 If findings substantially cover the issues, the fact that they are clumsily drawn, and show upon their face an ambiguity due to erroneous capitalization and punctuation, will not be ground for reversal of the judgment.194 A general finding, contained in the conclusions of law, that certain parties are the owners in fee, settles all questions of title not negatived by the special findings, and findings of ultimate facts will be treated as such, though contained in the conclusions. of law.195 A recital in the findings that they are made from "the admission of the pleadings and the evidence taken" imports verity and precludes inquiry.196 The fact that a statement of an ultimate fact appears among the conclusions of law is no reason for reversing the judgment based thereon.197 TRIAL BY COURT-FORMS. § 1188. Written stipulation waiving jury trial. [TITLE.] Form No. 391. It is hereby stipulated by the parties that trial by jury be waived, and that the same be tried by the court [at the . . . term of the . . . court for . . . county, notice of trial being hereby waived]. [DATE.] G. H., Plaintiff's Attorney. § 1189. Finding by the court-General form. This action coming on for trial at the . . . term of said court, and having been tried before the court [a jury trial having been 192 Ames v. City of San Diego, 101 Cal. 390, 35 Pac. 1005; Breeze v. Brooks, 97 Cal. 72, 31 Pac. 742, 22 L. R. A. 256. 193 Schultz v. McLean, 93 Cal. 329, 28 Pac. 1053. See Felton v. Le Breton, 92 Cal. 457, 28 Pac. 490; Brison v. Brison, 90 Cal. 323, 27 Pac. 186. 194 Thompson v. Brannan, 76 Cal. 618, 18 Pac. 783. 195 Adams v. Hopkins, 144 Cal. 19, 77 Pac. 712. 196 Martin v. Eagle Creek Dev: Co., 41 Or. 448, 69 Pac. 216. 197 Curtis v. Boquillas Land etc. Co., 9 Ariz. 62, 76 Pac. 612; affirmed (1906), Herrick v. Boquillas Land etc. Co., 200 U. S. 96, 50 L. Ed. 388, 26 Sup. Ct. 192. |