Duane v. Neumann

By the COURT. It has been repeatedly ruled here that the trial court must find upon all of the material issues raised by the pleadings. That rule was not observed in the present case, for which reason the judgment and order are reversed, and the cause remanded for a new trial.

We dissent: Thornton, J.; Sharpstein, J.

THORNTON, J., Dissenting. I dissent. In my judgment, all the issues raised by the pleadings were found upon by the court below. The plaintiff in his complaint set up a contract with certain terms, and Neumann denied the allega[256]tions in regard to it, and set up one with different terms as the only contract entered into by himself and plaintiff. Thus was issue joined. There was only one contract involved in the case, and the court below in its findings affirmed what the contract was; in other words, found it with all its terms. Moreover, the contract was entered into on an assignment made by plaintiff to defendant, Neumann, and the court in its findings particularly specifies the contract affirmed by it as the one made in consideration of such assignment. Now, was it necessary for the court to go further and find that the contract affirmed by it was the only contract entered into by the parties, and that there was no other? I think not. By finding the contract specifically as above stated, it in effect found that there was no other: Coveny v. Hale, 49 Cal. 556.

I think the judgment and order should be affirmed.