Jacuzzi v. Jacuzzi
Before: James
Synopsis
Appeal—Judgment—Payment as an Issue—Failure to Find.—On appeal from a judgment in an action for work and labor, where nonpayment was alleged in the complaint and put in issue by the answer, a finding that the services were rendered by the plaintiff at the special instance and request of the defendant and that the reasonable value thereof was a stated sum, does not cover the issue of nonpayment, and the failure to find on that issue renders the judgment fatally defective.
Id.—Issues Under Cross-complaint—Absence op Findings.—Failure t'o find on issues presented by a cross-complaint is immaterial where the facts alleged in the cross-complaint are not inconsistent with those alleged in the complaint, and the finding of indebtedness due plaintiff necessarily involves a consideration of the claim in the cross-complaint.
JAMES, J.
Plaintiff sued defendants for a sum of money, alleging that the debt was incurred by defendants for work and labor performed at defendants’ request. Appellant Remington filed an answer denying the indebtedness, and
[534]
also a cross-complaint, to which plaintiff made denial. The court found that plaintiff was entitled to recover, and ren-. dered judgment accordingly. This appeal was taken from the judgment and is presented on the judgment-roll alone. ■ The contentions of appellant are that the court failed to find on the issue as to the nonpayment of the plaintiff’s claim, and also failed to make particular findings on the issues presented by the cross-complaint. It is true that the court failed to make a finding as to the nonpayment of the debt, merely finding that within two years before the commencement of the action labor and services were rendered by plaintiff at the special instance and request of appellant, and that the reasonable value thereof was a certain sum, stating it. The complaint was sufficient in its allegation as to nonpayment and the answer took issue with it as to that fact. The allegation of nonpayment made in the complaint was essential to the statement of a good cause of action. “It has been held in numerous cases that a party suing upon a contract to pay money must show a breach of the contract—that is, must allege the nonpayment of the money which he seeks to recover—or his complaint states no cause of action, and may be assailed by a general demurrer. In
Richards
v.
Travelers’ Ins. Co.,
80 Cal. 506,
[22
Pac. 939]—the last case in which the rule is declared—it is said: ‘The complaint was fatally defective in this respect. It contained nó allegation of nonpayment; nor is there any allegation from which such nonpayment can be implied. ’ ”
(Grant
v.
Sheerin,
84 Cal. 197, [23 Pac. 1094].) Respondent cites certain cases dealing with the sufficiency of findings where no issue was mádfe by the pleadings. Those authorities are not applicable to the case here. That the trial court is required to make findings upon all material issues seems not to be controverted, and that a failure to make such findings is ground for reversal.
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