Opinion
July 20, 1971. Not Slected for Official Publication.
Sobol & Sobol, Bernard Dan Steinberg, Harry Sobol, Denver, for plaintiff in error.
McCarthy & Reneau, Thomas McCarthy, Denver, for defendant in error.
PIERCE, Judge.
This case was transferred from the Colorado Supreme Court pursuant to statute.
This is an appeal from an action for breach of contract in which the parties appear in the same order as their appearance below.
Upon trial to court, judgment was rendered in favor of defendant. In making its findings of fact and conclusions of law from the bench, the trial court ruled that plaintiff was estopped from maintaining this action by reason of its own breach of the contract. Although the court found that the contract was 'violated right off the bat' by the plaintiff, it failed to make any findings of fact supportive of this conclusion, neither does our reading of the record reveal any evidence on which to base such a determination.
In reviewing the findings of the trial court, we are bound to search the record for that evidence which is most favorable to the prevailing party below. Adler v. Adler, 167 Colo. 145, 445 P.2d 906. When the record cannot support the court's findings, however, the judgment should not stand and, as in the case before us, where we have neither requisite findings required by R.C.P.Colo. 52(a) nor evidence upon which the ultimate conclusion can be justified, we cannot affirm the judgment of the trial court. Mowry v. Jackson, 140 Colo. 197, 343 P.2d 833.
Since intervening circumstances do not permit the remand of this case to the trial court for appropriate findings of fact, judgment is reversed and remanded for new trial. Irish v. United States, 9 Cir., 225 F.2d 3.
SILVERSTEIN, C.J., and DWYER, J., concur.