Larson v. Thoresen

California Supreme Court Feb 2, 1951 No. L. A. 21206Published

Before: Shenk

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Holding. The court dismissed the appeal because the trial court failed to make the required findings of fact and conclusions of law necessary to support a judgment in a partition action, rendering the purported order ineffectual.

Issues

Whether the trial court's 'Opinion and Order' satisfied the requirements for findings of fact and conclusions of law in a partition action.
Whether an appellate court should exercise its authority under Code of Civil Procedure section 956a to make findings of fact in the first instance.
Whether the trial court erred by ordering specific performance of a joint venture agreement instead of following statutory partition procedures.

Disposition. dismissed

Quotations verified verbatim against the opinion

“Because of the failure to make required findings of fact and conclusions of law upon which an order or judgment could be based as contemplated by the statute, the appeal should be dismissed.”

“It was never intended that the appellate court should perform those functions in the first instance.”

SHENK, J.

This is an appeal by the plaintiffs from an order directing the parties to make repairs to and to effect the sale of certain real property and for distribution of the proceeds.

Erik H. Larson and John F. Thoresen (referred to herein as plaintiff and defendant respectively) entered into a written agreement to purchase a building lot in El Monte, construct thereon a residence and garage, contribute equally to the cost, sell the property and share equally any profit realized. The agreement also contemplated the contribution by each of personal labor and payment therefor at designated rates. The lot was purchased and title taken by the parties as tenants in common. On completion of the structures in October, 1947, the defendant and his family moved into the house and have since continued to occupy the premises. The property remained unsold.

On April 23, 1948, the plaintiff commenced the action for partition or sale of the property. Several alleged lien claimants were joined as defendants. In a first cause of action a partition of the property by a sale and equitable division of the proceeds after payment of amounts owing to lien claimants was requested. A second cause of action was based on allegations of the defendant’s breach of contract by occupancy of

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the property without the plaintiff’s consent and by delay and hindrance of the sale whereby the value was alleged to have declined to the extent of $2,500. The plaintiff sought one-half of that sum as his share of the loss. An accounting of rents and profits based on the alleged reasonable rental value of $150 per month and judgment for one-half thereof was sought by a third cause of action. A fourth cause of action was for damages for alleged waste committed to the extent of $1,500 and judgment was asked for one-half that sum. In a fifth cause of action the plaintiff sought a declaration of the rights of the parties.

The defendant by answer placed in issue the allegations of all: causes of action and alleged affirmatively that the delay in'the sale of the property was caused entirely by the plaintiff. He also filed a cross-complaint seeking $3,000 damages based on the plaintiff’s alleged breach of contract by failure to pay his share of the construction costs, to place the property on the market, and to agree to the price or terms for the sale.

Larson v. Thoresen

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SHENK, J.

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