Stewart v. Burbridge
Before: Taggart
Synopsis
Action for Breach of Contract—Sufficiency of Finding—Amount Unpaid—Sum “Due and Owing.”—In an action for breach of contract, a finding that before the commencement of the action plaintiff demanded the sum payable, “but that said defendants and each of them have failed, neglected and refused, and still fails, neglects and refuses, to pay said plaintiff the said sum, . . . any part thereof, and there now remains due and owing from the said defendants to the said plaintiff the sum” specified, implies a sufficient finding that the sum “due and owing” remained unpaid at the time of the finding.
Id.—Defect in Form of Complaint Implying Material Fact—Absence of Demurrer—Cure by Judgment.—Any mere defect in the form of the complaint in averring a conclusion which implies a material fact is, in the absence of a demurrer, cured by the judgment for the plaintiff.
TAGGART, J.
The appeal in this case is from the judgment and from an order denying a new trial. The only error urged is that in finding of fact IV, which reads as follows: “That the said plaintiff,.has prior to the beginning of said action demanded of and from said defendants and each of them his proportion of said five thousand dollars ($5,000), to wit, one thousand six hundred sixty-six and two-thirds ($1,666-2-3) as a commission for making said sale but that said defendants and each of them have failed, neglected and refused and still fails, neglects and refuses to pay said plaintiff the said sum of one thousand six hundred sixty-six and two-thirds dollars ($1,666 2-3) or any part thereof and there now remains due and owing from the said defendants to the said plaintiff the sum of one thousand six hundred and sixty-six and two-thirds dollars ($1,666 2-3) over and above all counter
[624]
charges and offsets,’’ the words “due and owing” state a conclusion of law and not a finding of fact. That the finding as so worded does not dispose of the issue of nonpayment essential to a judgment, and therefore the judgment lacks this finding of fact necessary to its support.
It is a matter of some surprise that counsel should ask this court to reverse a judgment upon this ground alone on the record in this case, and upon the authority of
Penrose
v.
Winter,
135 Cal. 289, [67 Pac. 772], and
Ward
v.
Clay,
82 Cal. 502, [23 Pac. 50, 227]. In the latter ease the court says that the finding that a sum was “due and owing” implied that the sum remained “unpaid,” and this was held to be a sufficient finding of nonpayment. In the former case, Beatty, C.
J.,
writing the opinion, in considering the case of
Ryan
More from California Court of Appeal
- People v. Hill (1998)
- In Re Autumn H. (1994)
- Nwosu v. Uba (2004)
- In Re Casey D. (1999)
- Santisas v. Goodin (1998)
- Cahill v. San Diego Gas & Electric Co. (2011)
- People v. Rivera (2015)
- People v. Barnett (1998)
- People v. Serrano (2012)
- Benach v. County of Los Angeles (2007)