Merrill v. Gordon Harrison

12 Citing cases

  1. Leonard v. Fallas

    51 Cal.2d 649 (Cal. 1959)   Cited 29 times

    No.[5] This rule is here applicable: If findings are made upon issues which determine a cause, other issues become immaterial, and a failure to find thereon does not constitute prejudicial error. ( Merrill v. Gordon Harrison, 208 Cal. 1, 6 [3] [ 279 P. 996]; Chamberlain v. Abeles, 88 Cal.App.2d 291, 299 [8, 9] [ 198 P.2d 927]; Mortgage Guarantee Co. v. Smith, 9 Cal.App.2d 618, 621 [4] [ 50 P.2d 835]; see cases cited in West's Ann. Cal. Code Civ. Proc., vol. 16, ยง 632, p. 533, n. 133.) [6] In the present case the trial court found "that plaintiff exercised diligence in performing his said contract; that plaintiff made contact with one Morgan Adams, also known as Morgan Adams Jr., in respect of the possible purchase by the said Adams of the said real property; that plaintiff under date of March 7th 1956, and on March 22d 1956 by reference to the said letter of March 7th 1956, registered with defendant in writing the name of Morgan Adams (among others) as a prospective purchaser.

  2. Lawrence Barker, Inc. v. Briggs

    39 Cal.2d 654 (Cal. 1952)   Cited 18 times
    Referring to cause of action for declaratory relief

    The court having found that Briggs was no longer entitled to possession of the property, his interpretation of the additional rental provision became an immaterial issue and the failure to find thereon does not constitute prejudicial error. ( Merrill v. Gordon Harrison, 208 Cal. 1, 6 [ 279 P. 996]; Woodhead v. Wilkinson, 181 Cal. 599, 602 [ 185 P. 851, 10 A.L.R. 291].) For these reasons, I would affirm the judgment.

  3. Union Bank v. Superior Court

    31 Cal.App.4th 573 (Cal. Ct. App. 1995)   Cited 355 times   1 Legal Analyses
    Finding no right to a cause of action because plaintiff admitted the defendant did not engage in misconduct

    Further, as plaintiffs admitted in their admissions responses, defendant did nothing wrong in terms of administering the loan or seizing the medical scanner. Hence, defendant has proven it engaged in no misconduct and, as a result, plaintiffs have no right to an accounting. ( Merrill v. Gordon Harrison (1929) 208 Cal. 1, 5-6 [ 279 P. 996] [because defendant did not deprive plaintiff of any profits, no right to accounting]; K. King and G. Schuler Corp. v. King (1968) 259 Cal.App.2d 383, 396 [ 66 Cal.Rptr. 330], disapproved on another point in Liodas v. Sahadi (1977) 19 Cal.3d 278, 293, fn. 13 [ 137 Cal.Rptr. 635, 562 P.2d 316] [absence of finding of fraud precludes accounting]; Baxter v. Krieger (1958) 157 Cal.App.2d 730, 732 [ 321 P.2d 879] [since no moneys due to plaintiff, no right to an accounting]; Caldwell v. Caldwell (1947) 80 Cal.App.2d 378, 382-383 [ 182 P.2d 258] [absence of misconduct by defendants warranted nonsuit as to plaintiff's accounting cause of action].) There is no right to an accounting where none is necessary.

  4. Greenberg v. Hastie

    202 Cal.App.2d 159 (Cal. Ct. App. 1962)   Cited 14 times
    In Greenberg v. Hastie, supra, 202 Cal.App.2d 159, 173 we quoted from Richter v. Walker (1951) 36 Cal.2d 634, 640 [ 226 P.2d 593] as follows: "`[W]hile full findings are required upon all material issues a judgment will not be set aside on appeal because of a failure to make an express finding upon an issue if a finding thereon, consistent with the judgment, results by necessary implication from the express findings which are made."

    Other issues become immaterial and a failure to find thereon does not constitute prejudicial error. ( Chamberlain v. Abeles (1948) 88 Cal.App.2d 291, 300 [ 198 P.2d 927]; Duval v. Duval (1957) 155 Cal.App.2d 627, 631 [ 318 P.2d 16]; Merrill v. Gordon Harrison (1929) 208 Cal. 1, 6 [ 279 P. 996].) Appellant suggests the above agency issue was material in connection with the interpretation of the agreement of sale, because such document had to be strictly construed against its author, Darrimon.

  5. Schaefer v. Berinstein

    180 Cal.App.2d 107 (Cal. Ct. App. 1960)   Cited 29 times

    nce introduced as to such issue and the evidence was sufficient to sustain a finding in favor of the complaining party if the omitted findings might have the effect of countervailing or destroying the effect of the other findings (24 Cal.Jur. 940-941; Powell v. Johnson, 50 Cal.App.2d 680, 683 [ 123 P.2d 875]; Wilcox v. West, 45 Cal.App.2d 267 [ 114 P.2d 39]). [10-12] "`But it is equally well established that the findings of a court are to receive such a construction as will uphold rather than defeat its judgment thereon ( Breeze v. Brooks, 97 Cal. 72, 77 [31 P. 742, 22 L.R.A. 256]), and are to be read and considered together and liberally construed in support of the judgment ( Menghetti v. Dillon, 10 Cal.2d 470, 472 [ 75 P.2d 596]; Cornell v. Hollywood Turf Club, 32 Cal.App.2d 204, 208 [ 89 P.2d 449]); and that if findings are made upon issues which determine a cause, other issues become immaterial and a failure to find thereon does not constitute prejudicial error (24 Cal.Jur. 947; Merrill v. Gordon Harrison, 208 Cal. 1, 6 [ 279 P. 996]).' [13] It is likewise the rule that where a finding, if made, would necessarily have been against the appellant, he cannot complain of the lack of such finding. ( Petersen v. Murphy, 59 Cal.App.2d 528, 535 [ 139 P.2d 49]; Moore v. Hoar, 27 Cal.App.2d 269 [ 81 P.2d 226]; Consolidated Irrigation District v. Crawshaw, 130 Cal.App. 455, 462 [ 20 P.2d 119]; Brooks v. Bailey, 40 Cal.App.2d 310, 316 [ 104 P.2d 854]; 24 Cal.Jur. 944.)"

  6. Chamberlain v. Abeles

    88 Cal.App.2d 291 (Cal. Ct. App. 1948)   Cited 41 times
    Originating cause, which ultimately led to the conclusion of the transaction, is held to be the procuring cause

    dence introduced as to such issue and the evidence was sufficient to sustain a finding in favor of the complaining party if the omitted findings might have the effect of countervailing or destroying the effect of the other findings (24 Cal.Jur. 940-941; Powell v. Johnson, 50 Cal.App.2d 680, 683 [ 123 P.2d 875]; Wilcox v. West, 45 Cal.App.2d 267 [ 114 P.2d 39]). [8, 9] "But it is equally well established that the findings of a court are to receive such a construction as will uphold rather than defeat its judgment thereon ( Breeze v. Brooks, 97 Cal. 72, 77 [31 P. 742, 22 L.R.A. 256]), and are to be read and considered together and liberally construed in support of the judgment ( Menghetti v. Dillon, 10 Cal.2d 470, 472 [ 75 P.2d 596]; Cornell v. Hollywood Turf Club, 32 Cal.App.2d 204, 208 [ 89 P.2d 449]); and that if findings are made upon issues which determine a cause, other issues become immaterial and a failure to find thereon does not constitute prejudicial error (24 Cal.Jur. 947; Merrill v. Gordon Harrison, 208 Cal. 1, 6 [ 279 P. 996])." [10] It is likewise the rule that where a finding, if made, would necessarily have been against the appellant, he cannot complain of the lack of such finding.

  7. People v. Gorman

    69 Cal.App.2d 54 (Cal. Ct. App. 1945)   Cited 1 times

    [2] As said finding was against the appellant on the one fact upon which her case must stand or fall, all other issues as previously stated become entirely immaterial and unnecessary, and failure to find thereon does not constitute reversible error. ( Merrill v. Gordon Harrison, 208 Cal. 1, 6 [ 279 P. 996].) [3] If, in any case, there be one clear, sustained and sufficient finding upon which the judgment may rest, every presumption being in favor of the judgment, it will be concluded that the court did rest the judgment upon that finding.

  8. Petersen v. Murphy

    59 Cal.App.2d 528 (Cal. Ct. App. 1943)   Cited 29 times
    In Peterson v. Murphy, 59 Cal.App.2d 528, 139 P.2d 49, 53, the court said: "In Haigler v. Donnelly, 18 Cal.2d 674, 676, 117 P.2d 331, the court said that there was no error in the failure of the trial court to make an express finding upon an issue if it was implicit in the findings made, and that there is no necessity to negate contradictory allegations.

    dence introduced as to such issue and the evidence was sufficient to sustain a finding in favor of the complaining party if the omitted findings might have the effect of countervailing or destroying the effect of the other findings (24 Cal.Jur. 940-941; Powell v. Johnson, 50 Cal.App.2d 680, 683 [ 123 P.2d 875]; Wilcox v. West, 45 Cal.App.2d 267 [ 114 P.2d 39]). [2] But it is equally well established that the findings of a court are to receive such a construction as will uphold rather than defeat its judgment thereon ( Breeze v. Brooks, 97 Cal. 72, 77 [31 P. 742, 22 L.R.A. 256]), and are to be read and considered together and liberally construed in support of the judgment ( Menghetti v. Dillon, 10 Cal.2d 470, 472 [ 75 P.2d 596]; Cornell v. Hollywood Turf Club, 32 Cal.App.2d 204, 208 [ 89 P.2d 449]); and that [3] if findings are made upon issues which determine a cause, other issues become immaterial and a failure to find thereon does not constitute prejudicial error (24 Cal.Jur. 947; Merrill v. Gordon Harrison, 208 Cal. 1, 6 [ 279 P. 996]). [4] We shall consider first whether the findings were sufficient to constitute findings upon all the material issues in the case.

  9. Air Technical Development Company v. Arizona Bank

    416 P.2d 183 (Ariz. 1966)   Cited 1 times

    In Gonzalez Co., Brokers, Inc., v. Thomas, 42 Ariz. 308, 25 P.2d 552, the court stated: "* * * Although originally not responsible, having paid off the note, the corporation cannot directly or by counterclaim recover the money from the bank or its receiver, the payment having been made or ratified voluntarily, with full knowledge of all the facts, and without any fraud, duress, or extortion. 48 C.J. 734, ยง 280; Merrill v. Gordon, 15 Ariz. 521, 140 P. 496." 42 Ariz. at 313, 25 P.2d at 554.

  10. Moody v. Lloyd's of London

    61 Ariz. 534 (Ariz. 1944)   Cited 22 times
    In Moody, the Arizona Supreme Court held that "garnishment is strictly a statutory proceedings and all pleadings under it must be in accordance with the statue."

    [1, 2] 1. "Payment made voluntary and with the full knowledge of facts precludes payor from any recovery for such voluntary payment, and a judgment declaring such payment `wrongful' and granting recovery is error." This court adopted the general rule as to voluntary payments in the following from the case of Merrill v. Gordon, 15 Ariz. 521, 140 P. 496, 501, to which we adhere: "The general rule as to voluntary payments is stated in 30 Cyc. 1298, as follows: `Except where otherwise provided by statute, a party cannot by direct action or by way of set-off or counterclaim recover money voluntarily paid with a full knowledge of all the facts, and without any fraud, duress, or extortion, although no obligation to make such payment existed.' And this is the rule adopted by the English courts, the federal courts, and all the state courts, except the states of Georgia and Kentucky. . . ."