Spencer v. Duncan
Before: Searls
Synopsis
Findings—Statute of Limitations—Accounting—Demand.—In an action for an accounting of trust funds, in which the complaint averred a demand upon the defendant before suit brought, which allegation was admitted by the answer, a finding against the defendant’s plea of the statute of limitations need not find the date of such demand.
Id.—Decision — Findings of Fact — Conclusion of Law—Judgment.— Where, in such an action, the decision of the trial court, in its findings of facts, specifically finds the trust relation under which the money was obtained, a judgment entered thereon, decreeing that the money was held in trust, and ordering the same paid to the plaintiff, will not be reversed merely because the decision contained no express “ conclusion of law” as to such trust relation.
Id.—Erroneous Conclusion of Law.—An erroneous conclusion of law is not ground of reversal if the judgment >s right.
Searls, C. This is an action to compel the defendant to account for and pay certain moneys alleged to have been received by him and held in trust for the plaintiff.
The cause was tried by the court, written findings filed establishing the trust relation, and finding that there was due to plaintiff the sum of $1,071.85, with interest at seven per cent per annum from May 1, 1870, for which sum judgment was entered in favor of plaintiff. Defendant appeals from the judgment, and the cause comes up on the judgment-roll.
Two errors are assigned by appellant.
1. That the findings do not fix the precise time when plaintiff made demand for return of the moneys, and, in the absence of such a finding, it cannot be ascertained whether the cause of action is barred by the statute of limitations or not. Hence, that the judgment is not supported by the findings.
The complaint averred a demand upon defendant before suit brought, and the answer admitted such demand. So far, therefore, as a demand was a prerequisite to maintaining the action, it was not necessary to prove or find that a demand was made, it not being an issue in the case.
The statute of limitations was pleaded, and became an issue in the case, and there was an express finding thereon against the defendant.
That a demand was made, and the date thereof may have been evidence going to such issue, but it was not [425]an ultimate fact to be found by the court, but may well have been an evidentiary fact going to establish the ultimate fact.
2. The second error assigned is to the effect that all of the judgment, save and except that portion awarding plaintiff $2,678.73 and costs, is outside of and beyond the findings, and hence that the judgment should be modified by eliminating the same therefrom.
The portion of the judgment challenged is as follows: “ Wherefore, by reason of the law and the findings aforesaid, it is ordered, adjudged, and decreed that W. L. Duncan, the defendant, holds in trust for Rebecca Spencer, the plaintiff, the sum of $2,678.73, and that said W. L. Duncan, the defendant, is hereby ordered, adjudged, and decreed to account to and turn over to said Rebecca Spencer, the plaintiff, the possession of said sum of money, to wit: Twenty-six hundred seventy-eight and 73-100 dollars, and that Rebecca Spencer, the plaintiff, have judgment therefor against the defendant, W. L. Duncan,” etc.
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