Gschwend v. Stoll

SCHOTTKY, J. pro tem.

Plaintiffs and respondents brought this action against defendants and appellants to recover the sum of $1,308.81. The complaint contained two common counts: (1) 11 That within two years last past defendants became indebted to plaintiffs in the agreed sum of $7,258.05 for lumber, logs and lumbering materials sold and delivered,” and “that only $5,949.24 has been paid”; and (2) “That within two years last past the defendants became indebted to plaintiffs in the sum of $7,258.05 for lumber, logs, and lumbering materials sold and delivered,” and “that only $5,949.24 has been paid.” Defendants’ answer denied the allegations of the complaint, and offered to allow judgment for $396.27 plus $12 costs to be taken against them.

The court in its findings found that all of the allegations of the complaint were true, and found further that “plaintiffs sold to defendants . . . lumber, logs and lumbering materials in the aggregate agreed and reasonable sum of $7,258.05, and said defendants have paid only $5,949.24 on account thereof.” The court concluded that plaintiffs were entitled to judgment against defendants in the sum of $1,308.81, and this appeal is from the judgment entered in accordance with said findings and conclusions.

Appellants do not contend that the evidence is insufficient to support the findings and judgment, but the principal, and in fact the only, contention of appellants is that the court erred in not making a specific finding as to whether or not the price of the logs had been reduced from $24 to $21 per thousand feet. Appellants proposed such a finding but the court simply found that respondents sold and delivered to appellants logs in the “agreed and reasonable sum of $7,-258.05,” and that so much had been paid on account.

It is, of course, the law that a trial court commits error when it does not find upon all material issues, but it is also

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the law that findings should be on ultimate facts, and it is unnecessary to state the probative or evidentiary facts, for a finding of ultimate facts includes a finding of all of the probative necessary to sustain it. Since ultimate facts are required to be pleaded, it is only necessary in order to determine the sufficiency of a finding of fact to ascertain what statement of that fact is required in a pleading. (24 Cal.Jur., § 203, p. 968.) See, also,