Ballenger v. Tillman , 133 Mont. 369 ( 1958 )

MR. CHIEF JUSTICE HARRISON:

This is an appeal by the defendants, Oscar Tillman and his wife Mrs. Oscar Tillman, from a judgment in favor of the plaintiff, Joel Ballenger, rendered by the district court of the fourth judicial district of the State of Montana, in and for the County of Sanders.

In his complaint plaintiff alleged:

“1. That at all times herein mentioned the defendants were husband and wife, residing together as such.

“2. That the defendants are indebted to the plaintiff in the sum of Three Hundred and two and 74/100 Dollars ($302.74), being the balance due on stumpage from timber purchased of and from the plaintiff.

“That the plaintiff had demanded payment of and from the defendants and they have failed and still fail to pay said sum, or any part thereof, and the sum is still due and wholly unpaid; and that the plaintiff is entitled to interest on said sum at the rate of 6 % per annum from date hereof. ’ ’

Prayer ..for judgment for. $302.74, with interest and costs.

On August 9, 1954, three days after the complaint was filed, the defendants filed a demand for a copy of the account sued on as provided under section 93-3804, R. C. M. 1947. This account was furnished by the plaintiff on August 11, 1954,'and as filed stated:

“That the account sued on in the above-entitled matter is for timber cut from the land of the plaintiff near Heron, Montana, during the past year, for which the defendants agreed to pay $6.00 per thousand feet for mixed timber and $15.00 per thousand feet for white pine timber as stumpage.

“That 105,490 feet of mixed timber was cut and removed from said premises and 7,320 feet of white pine timber was cut and removed from said premises; and 10,000 feet of mixed timber was cut into logs but have not been removed by the defendant.

“That 105,490 feet of mixed timber at $6.00 per thousand amounts to $632.94. That the white pine timber so cut and removed at $15.00 per thousand amounts to $109.80. That the 10,000 feet of mixed timber cut into logs but not removed amounts to $60.00, making a total of $802.74.

“That defendants have paid to apply on said stumpage the sum of $500.00, thus leaving a balance due and unpaid for stumpage of $302.74.

“That this statement of account is rendered in compliance with the demand made by the defendants.

“Dated at Thompson Falls, Montana, this 10th day of August, 1954.

“/s/ A. S. Ainsworth

“Attorney for Plaintiff.”

To this complaint, the defendant filed a general demurrer which was overruled.

Defendant answered and cross-complained, and plaintiff in due course replied thereto, denying each and every allegation contained therein.

The cause came on for trial February 21, 1955, at the conelusion of which defendant made written request for findings of fact and conclusions of law, and submitted proposed findings and conclusions to the court.

On April 18, the court duly entered its findings of fact and conclusions of law as follows:

“Taking the cause by its four comers and giving due consideration to all of the competent evidence, the Court finds by a preponderance of the competent evidence that the allegations of the Complaint of the plaintiff are true.

“The Court further finds there is an insufficiency of competent evidence to prove by a preponderance thereof the allegations of the affirmative defense and cross-complaint of the defendants, Oscar Tillman and wife.

“As a Conclusion of Law, the Court finds that the plaintiff is entitled as of right to Judgment as alleged and prayed for in his complaint.

“The Court further finds that the requested Findings of Fact and Conclusions of Law of the defendants should be refused and denied.”

On April 23, defendant filed his exceptions to the findings of fact specifying as error that the findings were not decisive of the specific material issues raised in this action; that the findings are actually conclusions of law rather than findings of fact.

These exceptions were overruled and judgment subsequently entered for the plaintiff in pursuance to the prayer of his complaint. From this judgment the defendants have appealed.

Defendants appeal upon eight specifications of error, resolving themselves into the following issues to be dealt with seriatim:

(1) That the evidence is insufficient to sustain a judgment for the plaintiff but on the contrary the preponderance of the evidence is in favor of the defendant;

(2) That the evidence is insufficient to sustain a judgment against the defendant, Mrs. Tillman;

(3) That the findings of fact and conclusions of law made and entered by the court are insufficient to support the judgment;

(4) Nonjoinder of indispensable parties plaintiff; and

(5) The court erred in not sustaining defendants’ motion to strike the cost bill.

In determining the first issue, we find that upon credible testimony of the plaintiff and three other witnesses there was sufficient evidence to sustain the judgment in plaintiff’s favor. While Mr.. Tillman’s testimony was. contradictory to plaintiff on the question of how much he had .contracted-to purchase the timber for, “we see no such inherent conflict as would warrant a departure from the well-established rule that the credibility of the. witnesses and the weight to be given their testimony was for determination by the court below. Its findings supported as here by substantial evidence will not be disturbed. Ingalls v. Austin, 8 Mont. 333, 20 Pac. 637; Healy v. First National Bank, 108 Mont. 180, 89 Pac. (2d) 555; Wieri v. Anaconda Copper Min. Co., 116 Mont. 524, 156 Pac. (2d) 838; Giarratana v. Naddy, 129 Mont. 154, 160, 284 Pac. (2d) 254.” Notti v. Clark, 133 Mont. 263, 322 Pac. (2d) 112, 113.

As to the second issue, it is clear that there was insufficient evidence to sustain .any judgment against Mrs. Tillman. Upon cross-examination the following testimony adduced from the plaintiff negatives any recovery against her.. The testimony conclusively states that the agreement and ..negotiations were made between Mr. Tillman and. plaintiff. . .

“Q. Now, you made this agreement personally with Mr. and Mrs. Tillman jointly? A. No, sir, I made it personally with Mr. Tillman.

“Q. But you said during your direct examination that Mr. Tillman and his wife purchased, the timber.. * * * A. Mrs. Tillman — the money that I did receive from Tillmans was made out in a cheek by Mrs. Tillman, so therefore. I sold the timber to Mr. and Mrs. Tillman. . ,.

“Q. Did Mrs. Tillman buy it from you? Who did you talk to when you made these negotiations? A. Mr. Tillman.

“Q. And did Mr. Tillman say ‘Now, my wife and I are buying this jointly.’? A. No. * * *

“Q. Well with whom did you make the negotiations then? A. With Mr. Tillman. * * *

“Q. And where was this that he made this agreement? A. Where was it?

“Q. Yes. A. Right in among the timber. * * *

“Q. Was anyone else present? A. No.

“Q. Just the two of you? A. Yes, sir.

“Q. Not Mrs. Tillman? A. No.”

It is clear that plaintiff’s assertion that the agreement was made with both defendants was based upon his own conclusion of what payment for the timber by check, signed by Mrs. Tillman, meant. However, the evidence and testimony quoted above negatives any idea that Mrs. Tillman was a party to or entered into any negotiations with plaintiff. Plaintiff completely failed to prove any partnership, joint venture or other legal relationship existing between himself and Mr. and Mrs. Tillman jointly —as would sustain a judgment against Mrs. Tillman. Insofar as the judgment assumes to bind her, it is modified and the judgment should be amended so as to name only Mr. Tillman.

Under the third issue, the defendant contends that the findings of fact are insufficient for the reasons: (a) they are mere conclusions of law; and (b) the trial court failed to make findings on any of the issues in the ease.

R. C. M. 1947, sec. 93-5303, provides for the court, in rendering its decision, to separately state its findings of fact and conclusions of law. This court has held that upon proper request it is the duty of the district court to make findings, in the absence of which the cause presents grounds for reversal. City of Helena v. Hale, 38 Mont. 481, 484, 100 Pac. 611; Rogers-Templeton Lumber Co. v. Welch, 56 Mont. 321, 327, 184 Pac. 838. In the cases cited we have also held that a cause may be reversed, although findings are made, where such findings are so lacking in substance as to constitute no findings at all.

In the instant case, the findings are based upon the allegations of the pleadings. Although we have held that such findings are valid, nevertheless they must be weighed as to sufficiency by the complaint or pleading upon which they are based. Quinlan v. Calvert, 31 Mont. 115, 117, 77 Pac. 428.

If the findings of fact refer to the complaint, then to be sufficient, the complaint must state a cause of action. 89 C. J. S. Trial, sec. 630, p. 461; Neusted v. Skernswell, 69 Cal App. (2d) 361, 159 Pac. (2d) 49; Schomer v. R. L. Craig Co., 137 Cal. App. 620, 31 Pac. (2d) 396.

Since the findings of fact in the instant ease are based upon the complaint, an examination of that instrument is mandatory for a determination of the present issue. It is quite apparent from the pleading that plaintiff has based his complaint upon the action on account, or as it is commonly known, on an “open account. ’ ’

In section 93-3804, R. C. M. 1947, our code provides that, “It is not necessary for a party to set forth in a pleading the items of an account therein alleged * * *.” Since no specificity of pleading is needed in this regard, it is not necessary to allege the items constituting the account, but an allegation that an indebtedness is owing from defendant to plaintiff for the balance due on “stumpage from timber purchased of and from the plaintiff” upon which demand the defendant has failed and still fails to pay, is sufficient to allege the ultimate facts required by our code to state a cause of action. R. C. M. 1947, sec. 93-3202, subd. 2.

It has been said, if the complaint states ultimate facts and not conclusions of law drawn from facts, in ordinary and concise language, so that the man on the street may know what is charged therein, it is immune to a general demurrer or to an objection to the introduction of testimony on the,ground that it does not state a cause of action. Wells-Dickey Co. v. Embody, 82 Mont. 150, 156, 266 Pac. 869; and see First State Bank v. Mussigbrod, 83 Mont. 68, 73, 271 Pac. 695; Borgeas v. Oregon Short Line R. R. Co., 73 Mont. 407, 416, 236 Pac. 1069; Stricklin v. Chicago, etc., Ry. Co., 59 Mont. 367, 370, 197 Pac. 839.

The ultimate facts alleged in the instant case are that defendant bought certain stumpage from plaintiff, and has refused to pay the balance due upon such purchase though requested so to do. This court has held that one need not allege a promise if one is implied from the pleadings. Conrad Nat. Bank v. Great N. Ry. Co., 24 Mont. 178, 183, 61 Pac. 1. Implicit in the allegation of purchase from plaintiff is a promise to pay for the property. Would the man on the street have any difficulty in determining what was charged in the complaint? We think not.

Pleadings, nearly identical, except for the subject matter, have been held good against general demurrers in other jurisdictions. Epley v. Cunningham, 134 Cal. App. (2d) 769, 286 Pac. (2d) 380; Tillson v. Peters, 41 Cal. App. (2d) 671, 674, 675, 107 Pac. (2d) 434; Farwell v. Murray, 104 Cal. 464, 466, 38 Pac. 199; Central Lumber Co. v. Jones, La. App. 1937, 175 So. 849, 851; Robinson v. Herbst Bros., 63 Ga. App. 738, 12 S. E. (2d) 77.

In Central Lumber Co. v. Jones, supra, the complaint essentially alleges: “James Jones * * * is * * * indebted unto your petitioner in the full sum of Six Hundred and Eighty-two and 75/100 Dollars, with five per cent interest thereon * * * for * * * [lumber] sold and delivered to James W. Jones, Jr.” This complaint was held sufficient against a general demurrer.

■ “In a suit on account, ‘only slight averments are necessary to state a cause of action. ’ Henry Darling, Inc. v. Harvey-Givin Co., 40 Ga. App. 771, 151 S. E. 518, 520.” Taylor v. Sterns Coal Co., 44 Ga. App. 662, 162 S. E. 838.

California has a statute identical to our section 93-3804, found in California Code Civil Procedure, sec. 454, and in commenting on that section and its effect on pleadings, 1 Cal. Jur. (2d). Accounts and Accounting, sec. 27, pp. 344, 346, states: “ It follows that a count in a complaint averring that the defendant is indebted to the plaintiff on account is not subject to a general demurrer, nor to special demurrer for ambiguity and uncertainty for not stating where and when the cause of action accrued or setting forth the items of the account.”

In line with the above authorities we hold the complaint states a cause of action.

We come now to the question of whether the findings based upon the complaint are sufficient to sustain the judgment. In determining this question certain rules of construction regarding findings of fact are applicable and should be considered.

“Ultimate facts, as distinguished from evidentiary ones, are the findings a trial court should make. Lea County Fair Association v. Elkan, 52 N. M. 250, 197 Pac. (2d) 228.” Shephard v. Graham Bell Aviation Service, 56 N. M. 293, 243 Pac. (2d) 603, 605; 17 A. L. R. (2d) 913. See also Ely v. Montana State Federation of Labor, 117 Mont. 609, 614, 160 Pac. (2d) 752.

“The sufficiency of the findings of fact to support a judgment is to be tested by the same rules that are applied to test the sufficiency of a pleading to state a cause of action. Miller v. Gusta, 103 Cal. App. 32, 283 Pac. 946.” Carpenter v. Froloff, 30 Cal. App. (2d) 400, 86 Pac. (2d) 695.

“It is an established rule of law that the findings of fact are to receive such a construction as will uphold rather than defeat the judgment thereon.” 24 Cal. Jur., Trial, sec. 230, p. 1009; 89 C. J. S. Trial, sec. 625, pp. 452, 454; Alles v. Hipp, 108 Cal. App. (2d) 730, 239 Pac. (2d) 451; Perry v. Manning, 109 Cal. App. (2d) 557, 241 Pac. (2d) 43; Anderson v. Pastorini, 117 Cal. App. (2d) 428, 255 Pac. (2d) 855.

1 ‘ It will not be presumed that the court impliedly found facts inconsistent with the express findings. Beaverhead Canal Co. v. Dillon E. L. & P. Co., 34 Mont. 135, 85 Pac. 880.” Crosby v. Robbins, 56 Mont. 179, 193, 182 Pac. 122, 125.

If the findings are in exact accord with issues framed by the pleadings and every ultimate fact is covered that is all that is required. California Canning Peach Growers v. Williams, 11 Cal. (2d) 221, 78 Pac. (2d) 1154, 1160.

In Peterson v. Murphy, 59 Cal. App (2d) 528, 139 Pac. (2d) 49, 53, the court said: “In Haigler v. Donnelly, 18 Cal. (2d) 674, 676, 117 Pac. (2d) 331, the court said that there was no error in the failure of the trial court to make an express finding upon an issue if it was implicit in the findings made, and that there is no necessity to negate contradictory allegations. And in New Blue Point Mining Co. v. Weissbein, 198 Cal. 261, 244 Pac. 325, 45 A. L. R. 781, the court said- that the affirmative findings of the trial court on certain issues by necessary implication carried with them a negative finding of the truth of facts alleged in opposition thereto. * * *

‘ ‘ However, if we were to assume that the findings as made do not cover all material issues raised by the pleadings, failure to find on an issue is not ground for reversal unless it appears that there was evidence introduced as to such issue sufficient to sustain a finding in favor of appellant (24 Cal. Jur. 940, 941; Powell v. Johnson, 50 Cal. App. (2d) 680, 683, 123 Pac. (2d) 875); and where a finding, if made, would necessarily have been against appellant, he cannot complain of the lack of such finding. Moore v. Hoar, 27 Cal. App. (2d) 269, 81 Pac. (2d) 226, 238; Johnson v. Peck, 90 Utah 544, 63 Pac. (2d) 251, 254; Consolidated Irr. Dist. v. Crawshaw, 130 Cal. App. 455, 462, 20 Pac. (2d) 119; Brooks v. Bailey, 40 Cal. App. (2d) 310, 316, 104 Pac. (2d) 854; 24 Cal. Jur. 944."

Governed by the above rules, the findings in the instant case are sufficient. Since they are based upon the pleadings they are couched in terms of ultimate facts. The rule is established both in Montana and in Calfiomia that findings merely referring to the truth of all allegations of the complaint and the falsity of those found in the answer and cross-complaint are sufficient. Quinlan v. Calvert, supra; Kalmus v. Cedars of Lebanon Hospital, 132 Cal. App. (2d) 243, 281 Pac. (2d) 872; Wexler v. Goldstein, 146 Cal. App. (2d) 410, 304 Pac. (2d) 41; Larsen v. City & County of San Francisco, 152 Cal. App. (2d) 355, 313 Pac. (2d) 959; 24 Cal. Jur., Trial, sec. 214, pp. 986, 988.

Furthermore, a cursory examination of the record would make it amply apparent that any change in the findings as requested by defendant would not aid his cause, because there is insufficient evidence to sustain any finding in favor of appellant. Petersen v. Murphy, supra.

The holding in Epley v. Cunningham, supra, 134 Cal. App. (2d) 769, 286 Pac. (2d) 380, is particularly applicable to this ca,se; wherein it is stated: “Plaintiff and respondent filed a complaint wherein he alleged that within the four years last, past defendant became indebted to respondent’s assignor on an open book account, in the sum adjudged to be due, for labor and materials furnished by said assignor to appellant. * * * The court found that the allegations of the complaint were true, that the allegations of [affirmative defense] * * * were not true, and gave judgment in the amount sued for.”

In commenting upon the sufficiency of the findings the court said in 286 Pac. (2d) at page 381:

“A pleading alleging the existence of a balance due and owing on a book account is basically an ordinary action to collect a debt. * * *

“Appellant argues that the finding that appellant was indebted on a book account is not supported by the evidence. That is true to the extent that no book account was proved. But this leaves fully supported the essential finding of a debt and the variance is not material. ’ ’

• The next issue is whether the plaintiff failed to join in his action allegedly indispensable parties plaintiff. It appeared at the trial that the plaintiff and his wife had contracted to purchase the land upon which grew the subject of this litigation— the timber. Proceeds from the sale of timber were to be applied on the purchase price of the lands. However, plaintiff’s wife, or the vendors, were never made parties to the suit, nor did defendants at the trial, or prior thereto move for dismissal on the ground of defect of parties plaintiff.

Section 93-2801 provides that every action must be prosecuted in the name of the real party in interest.

Section 93-2828- provides that the court “may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in. ’ ’

Generally any defect in parties must be taken advantage of by special demurrer or else it is deemed waived, R. C. M. 1947, sec. 93-3301; Church v. Zywert, 58 Mont. 102, 107, 190 Pac. 291; McKenzie v. Evans, 96 Mont. 1, 10, 29 Pac. (2d) 657, or if the defect of parties does not appear on the face of the complaint then to move for non-suit at the trial. Thompson v. Shanley, 93 Mont. 235, 244, 17 Pac. (2d) 1085, followed in Cormier v. Fraser, 1956, 130 Mont. 170, 296 Pac. (2d) 1021.

It is only where the rights of persons not made parties would be prejudiced by a decision in their absence, that this court will reverse a case for failure to properly join parties plaintiff. McKenzie v. Evans, 96 Mont. 1, 10, 29 Pac. (2d) 657; State ex rel. Delmoe v. District Court, 100 Mont. 131, 46 Pac. (2d) 39, 42; Emery v. Emery, 122 Mont. 201, 200 Pac. (2d) 251, 265; State ex rel. Valley Center Drain District v. Board of County Commissioners, 100 Mont. 581, 51 Pac. (2d) 635, 639.

There are no facts' in the instant case bringing it within the latter rule. Absence of the plaintiff’s wife could not by any stretch of the imagination result in prejudice to her. As to the joining of the vendors, assuming arguendo only that they would be prejudiced by this decision in their absence, that point has become moot, since at the trial it was adduced that they had been fully paid, and that plaintiff had executed a mortgage to-another person, the terms of which were not introduced. The vendors could not be prejudiced for the reason that they had received everything they were entitled to under the purchase contract — payment in full.

The last issue presented is whether the court erred in not granting defendants’ motion to strike plaintiff’s cost bill for the reason it was not filed within the statutory time limit.

The court made findings of fact and conclusions of law on April 18, 1955, and filed them on April 21. Judgment was signed April 28 and filed April 29.

Plaintiff filed his memorandum of costs and disbursements on April 29, which defendants moved to strike on April 30. The court refused to sustain defendants’ motion on May 12.

B.. C. M. 1947, sec. 93-8619, provides: “The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve upon the adverse party, within five days after the verdict or notice of the decision of the court or referee or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made” his memorandum of costs.

The findings of fact and conclusions of law entered herein, stayed the entry of judgment in that the court provided:

“The defendants, and each of them, are hereby given five (5) days from date hereof within which time to prepare, serve and file exceptions hereto, and if no such exceptions are filed herein within that time, then let judgment be given and made as prayed for in the said plaintiff’s' complaint.”

Defendants filed exceptions to the findings on April 23, which were overruled by the court on April 28 by an order which further provided:

“It Is Now Hereby Further Ordered that Judgment be given and made in favor of the plaintiff and against the defendants as prayed for in said complaint.”

In this situation,- we hold the cost bill was filed in time.

We have examined defendants’ specifications of error very carefully, and with the exception heretofore discussed, find them without merit.

The case is remanded to the district court with directions to strike Mrs. Tillman’s name from the judgment; as amended the judgment is affirmed, each party to pay his own costs.

MB. JUSTICES CASTLES, ANGSTMAN and ADAIB, concur. HON. DEAN KING, District Judge, sitting in place of MB. JUSTICE BOTTOMLY.