Towle v. Sweeney

HARRISON, P. J.

The firm of Gardner & Boyden, as contractors, entered into a contract with one Probert, as owner, for the erection of a dwelling-house in San Francisco, and at the same time the defendants herein, as sureties, in connection with said contractors, as principals, executed a bond in the penal sum of $1,500 to any and all persons who should perform labor or furnish materials to the contractors, conditioned that, if the said contractors “shall fully pay to the said person or persons performing labor or furnishing materials” the value of such labor or materials, said obligation should be void; otherwise, to remain in full force and effect. The plaintiffs herein furnished the contractors certain materials, which were used in the construction of the dwelling-house, and, the contractors not having paid for

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the same, brought the present action against the sureties to recover from them the value of the materials so furnished. The construction of the dwelling-house was completed November 26, 1895, and the present action was commenced April 8, 1898. The defendants set up the statute of limitations (Code Civ. Proc., sec. 339, subd. 1) in their answer as a defense to the action, and the court found in their favor upon this issue, and rendered judgment accordingly, from which the plaintiffs have appealed.

1. At the trial the parties submitted the cause upon an agreed statement of facts. Thereupon the court filed its written finding of facts and conclusions of law, and entered judgment accordingly. Its finding that the plaintiffs’ cause of action is barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure is placed among the findings of fact, and it is urged by the appellants that, as the cause was submitted upon an agreed statement of facts, there should have been no finding of facts; and that, as the statute of limitations was not included in the agreed facts, the finding thereon must be disregarded, and was improperly considered by the court as a basis for its conclusions of law and judgment. While the findings of fact made by the court are not identical in form or language with the agreed statement upon which the case was submitted, it is not claimed by the appellants that there is any substantial variance in their effect, or that any fact found by the court, other than its finding upon the statute of limitations, is not supported by the facts set forth in the agreed statement. Although findings of fact are not necessary to the validity of a judgment, where the case is submitted for decision upon an agreed statement of facts, yet the court is net thereby precluded from making such findings of fact. It may adopt the agreed statement as its own finding of facts, or it may make findings therefrom to correspond with the issues to be determined ; and, as it is required to find only the ultimate facts in the case, it may find such ultimate facts from the probative facts set out in the agreed statement, as well as from evidence thereof. An agreed statement of facts is but a substitute for evidence of those facts, and in this respect differs from an “agreed case,” which, under section 1138 of the Code of Civil Procedure, may be submitted for decision without any plead