Opinion
Rehearing Denied 28 Cal. 302 at 310.
Appeal from the District Court, Seventh Judicial District, Solano County.
Plaintiff recovered judgment in the Court below and defendant appealed.
COUNSEL:
Thomas M. Swan, for Appellant.
M. A. Wheaton, for Respondent.
JUDGES: Sawyer, J. Mr. Justice Currey expressed no opinion.
OPINION
SAWYER, Judge
This cause was before the late Supreme Court. The principles of law applicable to the case were then declared, and the cause remanded for a new trial. (21 Cal. 92.) The appellant insists that, so far as anything is shown to the contrary by the record, on the second trial the Court and counsel proceeded on the theory that the facts as well as the law had been settled, and that only an account remained to be taken; that no evidence on the other issues in the case appears to have been introduced, and that the main issues formed by the pleadings do not appear to have been tried or determined. The respondent's counsel, on the contrary, avers, that all the issues were in fact tried, notwithstanding the fact that the record does not affirmatively show it. On the former appeal a new trial was ordered in general terms, and the case undoubtedly went back for trial upon all the issues of fact raised by the pleadings. It does not affirmatively appear in the record whether testimony was introduced on all of the issues referred to by counsel for appellant or not. The record does not purport to contain all the evidence. The statement on motion for new trial designates the grounds of the motion, and, as required by section one hundred ninety-five of the Practice Act, specifies certain particulars, in respect to which the appellant would claim the findings to be unsupported by the evidence, all of which relate to questions affecting the state of the account between the parties. The statute requires the testimony in the statement to be confined to those particulars. If any testimony in favor of plaintiff bearing upon the points specified was omitted by defendant, it was the duty of plaintiff's counsel to see that it was supplied by amendments. But he was not only not required to introduce any testimony not bearing upon other points, but it would have been improper for him to do so. The presumption, therefore, is that the statement does not contain all of the testimony, or any testimony upon the points not specified. Under the statute, as it now stands, it must be presumed that the verdict or decision is sustained by the evidence in all respects, except in those particulars in which the statement specifies the evidence to be insufficient. For these reasons we can only consider the particulars thus specified.
Exceptions were taken to the findings as being defective in several particulars, in pursuance of the Act of 1861 (Stat. 1861, 589), and defendant moved to vacate them on that ground. The facts were not so fully stated in the findings as is desirable in cases of the character under consideration. In most of the material particulars sufficiently designated in the exceptions, the defects were subsequently supplied by amendments filed by the Judge. In some of the exceptions the respondent not only designated the point upon which he desired a finding, but also designated how he desired the Court to find upon the point, and excepted to the refusal to find in the way designated. We have often seen similar exceptions in other cases. There seems to be on the part of many a misapprehension as to the character of the exception to be taken under the Act of 1861. These exceptions are not--as seems to be supposed--to be taken to the finding, on the ground that a fact is erroneously found. Errors in the finding are not to be corrected in this mode. Nor is there any such practice provided for in this Act as vacating findings on the ground that they are defective. The design of the statute is to enable the Court, at the instance of the party, to supply defects, as where there is an omission to make any finding at all, or to find on any issue of fact essential to the determination of the rights of the parties. A party is entitled to a finding, and he is also entitled to have a finding upon every issue raised, which is essential to the determination of the case. If the Judge neglects to file his decision in writing, stating the facts found, and his conclusions of law, or if he omits to find upon any issue essential to the determination of the case, the party desiring a finding may except for the want of a finding in the former case, or for a defect in the latter; but when he excepts for defects, the " particular defects shall be specifically and particularly designated" --that is to say, he must specify, particularly, the point or issue upon which he requires the Court to state the fact found, but he is not authorized to dictate how the Court shall find. That question must be determined by the Court from the evidence in the case. If the Judge errs in his findings, the remedy for the error is by motion for a new trial. The exception, as above stated, is the only exception contemplated by the Act of 1861. But the exceptions contemplated by the Act must be filed within five days after the making of the finding or decision, and must be brought to the notice of the Judge, in order that he may have an opportunity to supply the defects complained of.
While on this subject--although the finding in this case is not objectionable on that ground--we desire to suggest to District Judges another fault of frequent occurrence in the cases appealed to this Court. In many instances the finding is an opinion rather than a finding of facts and conclusions of law. In it the facts found, a rehearsal of evidence, without stating the fact supposed to be proven by it, conclusions of law and argument, are all mixed up in such a way that it is difficult, if not impossible, to tell what the ascertained facts of the case are. The finding of facts and conclusions of law contemplated by the statute is something different from an opinion. The finding should consist of a concise, distinct, pointed and separate statement of each specific, essential fact established by the evidence, in its proper order, without any of the testimony by which the facts are proved, followed by a similar statement of the conclusions of law drawn from the facts thus found. This is the finding contemplated by the statute, which is to be annexed to and form a part of the judgment-roll. If an opinion is written--and we are always glad to find one in the transcript--it should be entirely separate from the finding, and filed among the papers in the case. The Practice Act recognizes an opinion as something different from a finding. (Secs. 180, 203, 346.)
Upon comparing the fourth original and very general finding, to the effect that the rents and profits have fully repaid to defendant the four thousand dollars and interest thereon, and all expenditures upon the land, with the several more specific findings in the amendments, we are unable to harmonize them. If a discrepancy exists, the more specific findings of particular facts must control. According to both the fourth original finding and the first amendment, the principal sum to be paid is four thousand dollars; and according to the said amendment the rate of interest is " two and a half per cent. per month, payable monthly; and if not so paid, a new note was to be given therefor, itself drawing two per cent. per month." And on January 4, 1859, the amount of interest then unpaid was one thousand two hundred and fifty-eight dollars and eighty-six cents. According to the third amendment the full amount of interest then due had been at that time tendered and rejected, and the interest then due thereby ceased to draw interest. But the tender of four thousand dollars on the 4th was held--and we think correctly--not to be a good tender, because it was insufficient to pay the principal and interest. The one thousand five hundred dollars tendered on the 3d for interest undoubtedly formed a part of the four thousand dollars tendered for principal on the 4th, and was made to perform double duty, and the tender was evidently not made in good faith. The tender on the 4th being bad, the interest on the four thousand dollars continued to run against the plaintiff. The Court does not find, nor does the evidence show at what time in the fall of 1859 defendant realized his money from the products of the premises. But he rented them about the first of November, at which time a new farming year commenced, and, this being the end of the farming year, is probably, under the ordinary rules for making rests in such cases, the earliest moment at which the plaintiff would be entitled to charge the profits of the year against defendant. Charging them at this time, the four thousand dollars principal had run at interest, in round numbers, ten months, since the 4th of January, 1859, which at two and one-half per cent. on the principal, and two per cent. on each monthly installment of one hundred dollars interest, from the date it fell due, would, on the 4th of November, 1859, amount to five thousand and ninety dollars. The Court also found that the defendant had paid six hundred and five dollars and sixty-four cents taxes, " a portion being paid each year," without stating what portion, and that, during the time he was in possession, he built stone-wall fencing of the value of one thousand two hundred dollars, without stating in what years. As to the taxes, the several amounts, and the times at which they were paid, are admitted in the record. On the 1st of November, 1858, the amount of taxes paid was ninety-six dollars and thirty-nine cents; and on the 15th of October, 1859, the further sum of ninety-eight dollars and seventy cents was paid. Allowing one year's interest at the legal rates on the first sum, we have a credit for taxes in favor of defendant, in round numbers, of two hundred and four dollars, which, added to five thousand and ninety dollars, gives the sum of five thousand two hundred and ninety-four dollars due defendant, November 4, 1859. The Court found the rents and profits of that year to be three thousand seven hundred and thirty-one dollars. Charging this sum against defendant on that day, and deducting it from the said amount due him, there would remain, if we have made no mistake in the computation, a balance in his favor of one thousand five hundred and sixty-three dollars. The Court found the yearly value of the rents and profits for the next three succeeding years at one thousand one hundred dollars, and that defendant received five hundred dollars for the year 1863. Regarding them as chargeable against the defendant at the end of each year, say on the 4th of November, and casting the interest on the above balance and accruing monthly interest to November, 1860, adding the taxes paid that year, and deducting the one thousand one hundred dollars profits of the year, taking this balance for a new principal, and so continuing to the end, regarding the five hundred dollars for 1863 as paid in November, 1862, and deducting it at the same time as the last one thousand one hundred dollars, it will be found that on the 4th of November, 1862, the four thousand dollars and interest accruing subsequent to January 4th, 1859, together with the taxes, have been paid, and a balance left of something over seven hundred dollars in favor of the plaintiff. But the one thousand two hundred and fifty-eight dollars and eighty-six cents, interest, which accrued in favor of defendant prior to January 4, 1859, upon which interest was stopped by the tender, has not yet been disposed of. Deducting the balance in favor of plaintiff at the close of 1862, after satisfying the principal, interest, and taxes accrued subsequent to January 4, 1859, from said item of one thousand two hundred and fifty-eight dollars and eighty-six cents, interest accrued before that time, and all of the rents and profits found by the Court to be chargeable against defendant, will have been absorbed and a balance of more than four hundred dollars will be left in favor of defendant. To this balance the one thousand two hundred dollars paid for fencing, of which no account has yet been taken in our computation, is still to be added. The Court allowed this sum for fencing as one of the expenditures, and it must therefore be presumed that it was found to be necessary, there being no finding on that point, and no exception for defect in this particular. The mode suggested of computing the interest and stating the account upon the particular facts found, is the most favorable one to the respondent that can be adopted. If we are anywhere near right in our computations, it seems impossible to harmonize the specific findings in the amendments with the fourth original finding, for by the former there was really a very considerable balance still due the defendant. And if so, the judgment is necessarily erroneous and a new accounting must be had.
Appellant insists that the Court erred in refusing to make an interlocutory order settling the principles upon which the accounting was to be had, and to refer it to a commissioner or referee to state the account. The Judge is at liberty to state the account between the parties and determine all the questions in the case himself, if he chooses to do so. But in a case like this, where his time is limited, it would be very inconvenient, if not almost impossible, to do it. It would be singular, indeed, if, in the ordinary hurry of a trial by the Court, some error should not occur. Unquestionably, the better and safer practice would be, in such a case, to refer it to some competent person to state the account. But the Court can pursue such course as it may deem advisable.
A mortgagee in possession " will be accountable for the actual receipts of the net rents and profits, and nothing more, unless they were reduced or lost by his willful default or gross negligence. By taking possession he imposes upon himself the duty of a provident owner, and he is bound to recover what such an owner would by reasonable diligence have received." (4 Kent's Com. 166.) This is the rule applicable to the present case. During the year 1859, when the defendant worked the premises himself, he is bound to account for the net proceeds of the farm after paying all the necessary expenses of carrying it on. He is entitled to deduct the taxes paid and necessary repairs. As a general rule, the cost of new and permanent improvements cannot be allowed. There may, however, be special circumstances which would justify a Judge in making the allowance. In this case the value of the fencing cannot be allowed unless the fence constructed was necessary to the protection of the crops. But if the value of the rents and profits were enhanced in consequence of the building of the fence, defendant cannot be charged with such enhanced value, unless an allowance is also made to him for the value of the fence. Although the defendant was chargeable for the actual net profits while he carried on the farm, he was not bound to work it himself, provided he could rent for the full yearly value of the premises to suitable parties who would manage it in a husbandlike manner. And while he thus rented it at its full value, he was only chargeable for such value. Of course he would be chargeable for all the rents received, after deducting necessary expenses, during the years the premises were rented. The evidence, therefore, should be directed to the value of the premises and the rents received, and not to the actual amount of the products raised by the tenant, and the net amount such tenant was enabled to realize. The tenant took the risk of a favorable or unfavorable season. He might pay more as rents than he could actually realize in any given year, and he might pay less. As to the crops on the premises when they were purchased they belonged to the real purchaser, and not the party standing in the position of mortgagee, and if they were turned over to the defendant for the purpose of making the last payment on the purchase-money out of the net proceeds derived from them, or were taken by defendant and devoted to that purpose independent of any express agreement in regard to the crops between plaintiff and defendant, then they stand in the same position as other rents and profits, and a payment out of them upon the purchase-money must inure to the benefit of the plaintiff, and be regarded as a payment by him. Of course, if they were purchased of plaintiff and paid for by defendant they belonged to the purchaser. The defendant is entitled to have the taxes and the ordinary necessary expenses and necessary repairs deducted from the receipts of the year in which they were respectively paid.
After an attentive examination of the transcript and briefs of counsel, we are forced to the conclusion that the judgment should be reversed, and that so much of the finding as relates to the accounting should be vacated, and to that extent a new trial and a reaccounting between the parties on the principles herein indicated be had. And it is so ordered.