Kennedy & Shaw Lumber Co. v. S. S. Construction Co.

HAYNES, C. Suit upon a promissory note made by the S. S. Construction Company to the plaintiff, and indorsed by the defendants, the San Francisco & San Mateo Railway Company and J. G. and I. N. Day, and which also bears words of guaranty signed by appellant Behrend Joost. Hpon the trial; the action was dismissed as to all the defendants except Mr. Joost, and findings and judgment were against him, and he appeals from the judgment and an order denying a new trial.

The note here in suit was given in renewal of a prior note made by said construction company and indorsed by the railway company and J. G. and I. N. Day, but to which Mr. Joost was not a party either as maker, indorser, or guarantor; but upon said renewal note Mr. Joost wrote and signed a guaranty of the payment thereof, and, as appears from the statement on motion for a new trial, “the only contention at the trial was that the said guaranty was given by defendant Behrend Joost after the delivery of the note without a separate consideration from the note itself, or any consideration whatever”; and appellant contends that the findings do not support the judgment, or, if it should be held that they do, that they are not justified by the evidence.

The first finding is as follows: “That all the allegations contained in subdivisions I, III, IY, and YI are true”; and appellant contends that said finding is indefinite and insufficient to support the judgment; that, for all that appears, the subdivisions intended may be of defendant’s answer.

The findings, when signed and filed, are part of the record (Reynolds v. Harris, 8 Cal. 618), as are also the pleadings and judgment. The findings always relate to matters contained in the pleadings, that is, they determine the material issues of fact raised by the pleadings, and as to matters of fact admitted by [586]the pleadings no finding is necessary, and as to such facts the pleadings, in effect, become part of the findings. It is clear, therefore, that the reference in said finding to “subdivisions” can only refer to a pleading, to which we must always look, not only to ascertain what facts are admitted, but to determine whether the findings are within the issues; and on looking at the pleadings we find the complaint contains “subdivisions” corresponding to those mentioned in said finding, while there are no subdivisions or paragraphs numbered in the answer. In Swifl v. Muybridge, 8 Cal. 445, it was said: “The findings of fact by the court are like the special verdict of a jury. They must be taken in connection with the pleadings to support the judgment”; and in Whitlock v. Manciet, 10 Or. 166, it was held that "when the language of a finding is equivocal, the construction which accords with the pleadings and supports the judgment should be adopted.” (See, also, Barnes v. Sabron, 10 Nev. 217, and Edwards v. Neison, 51 Mich. 121.) It is true the findings should be specific, but as the record itself removes any uncertainty we do not feel justified in reversing the judgment upon this ground.