Hathaway v. Ryan

Findings of Fact.—In ease of the trial of a cause before the Court without a jury, it is the right of the Judge of the Court to sign and file his findings, whether drafted by himself or another, without notice to the attorneys of the parties; and in doing so his sole duty is to see that they are proper, and in conformity with his view of the facts and law of the case.

Idem—Remedies when Defective or Erroneous.—If there be a material fact, in respect to which the findings are silent, the party aggrieved may except to them by pointing out the particular defect or omission complained of, and if then the Court refuses to correct them, the remedy is by appeal. But if on any material fact the Court finds contrary to or without sufficient evidence, this is ground for a new trial only.

Idem—Stipulation.—On the trial of a cause before the Court without a jury, the Judge, after announcing orally a decision in favor of the plaintiffs, requested plaintiffs’ attorney to draw up in form proper findings j thereafter plaintiffs’ attorney drew up and served upon defendants’ attorney, successively, three series of such proposed findings, to the first and second of which, when so served, defendants’ attorney excepted. The first series was withdrawn by plaintiffs’ attorney on presentation of defendants’ exceptions thereto. The Judge of the Court refused to sign the second series on consideration of defendants’ exceptions thereto. To the third series the defendants’ attorney prepared and served on plaintiffs’ attorney amendments in the shape of a substitute series—to the adoption of which, in lieu of his own, plaintiffs’ attorney dissented, of which he gave defendants’ attorney written notice, and therein inquired when the findings should be settled. The third series drawn by plaintiffs’ attorney were signed and filed by the Judge without notice given to defendants’ attorney or consideration of his amendments thereto; thereupon defendants’ attorney moved to vacate and set aside the findings as irregular, on the ground that he was entitled to notice of the time and place of their settlement; which motion being denied, defendants’ attorney excepted : Held, first, that the transaction did not amount to a stipulation that defendants’ attorney should have notice of the time and place of settlement; and, second, that the Court did not err in denying said motion.

Actions Ex Contractu—Allegata and Probata must Agree.—In an action ex contractu, the complaint, consisting of two counts, alleged, in the first, that defendants were indebted to the plaintiffs in the sum of ten thousand dollars, for the use and occupation of plaintiffs’ certain wharf in the City of San Francisco by the defendants, at their instance and request and by the sufferance and permission of the plaintiffs, and that, in consideration thereof, defendants promised to pay said sum to plaintiffs, on request; and in the second count, that at the request of the defendants the plaintiffs had suffered and permitted the defendants to use a certain berth at said wharf for a period and in a manner particularly specified, and that in consideration thereof the defendants promised to pay to the plaintiffs, on request, so much as they reasonably deserved to have therefor, which sum was alleged to be ten thousand dollars. The answer was a general denial. It appeared from the proofs at the trial and the findings of fact filed, that defendants did occupy plaintiffs’ said wharf in the manner and for the period alleged, but was so done neither in pursuance of the express contract alleged by plaintiffs in said first count, nor by the permission or sufferance of the plaintiffs as alleged in said second count, but that said occupancy by the defendants at the time of its commencement was wholly unauthorized by any contract, and was a trespass upon the plaintiffs’ wharf: Held, that this is an action for use and occupation, and that such action does not lie where the occupation was tortious and not under a contract, or at least permissive.