Krug v. F. A. Lux Brewing Co.

McFARLAND, J.

This action is based on a promissory, note alleged to have been made by the corporation defendant

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to the plaintiffs. The answer contains specific denials of certain averments of the complaint and also certain affirmative allegations which, if true, constitute a defense to the action. Judgment went for the plaintiffs, and the defendant appeals " from the judgment.

The defendant contends that the findings do not support the judgment, and this contention must he sustained. The only findings made by the court are as follows: “That all the allegations of plaintiffs’ complaint in said action are true. That all the allegations of defendant’s answer in said action, so far as they are inconsistent with the allegations of said complaint, are not true.” It has been established by a long line of decisions in this state that such a finding is insufficient to support a judgment.

(Ladd v. Tully,

51 Cal. 277;

Johnson v. Squires,

53 Cal. 37;

Harlan v. Ely,

55 Cal. 340, 344;

Bank of Woodland v. Treadwell,

55 Cal. 379;

Goodnow v. Griswold,

68 Cal. 599.) Of course, as was held in

Williams v. Hall,

79 Cal. 606, and in many other cases, a finding that “all the allegations of the complaint are true and all the averments of the answer are untrue,” is sufficient; but the findings in the case at bar that the allegations of defendant’s answer, “so far as they are inconsistent with the allegations of said complaint, are not true,” leave entirely undecided what allegations of the answer are inconsistent with the allegations of the complaint. The case at bar cannot be distinguished from

Harlan v. Ely, supra,

where the court, having made some special findings, then found generally that all the allegations of the answer are untrue, “except only in so far as the same accord with the foregoing facts.” This court in reversing that case said: “The court below should have assumed the labor of comparing the allegations of the answer with the facts by it found; as it is,' we are not informed which allegations of the answer were, in the opinion of the court below, true, which untrue. We cannot assume the function of determining for the first time the truth or falsity of any of them, either by reference to the testimony or to the facts actually found. A finding that all the ‘material’ averments of a,pleading are true or untrue is insufficient.