Fox v. Haarstick/Opinion of the Court
The appellant's contentions are that the trial court erred in failing to make an express finding as to certain defenses set up in the defendant's answer, which are alleged to have constituted new matter in avoidance of the contract declared on by the plaintiff, and to have been sustained by evidence, and that the supreme court of the territory erred in approving that action of the trial court by affirming its judgment.

The defensive matter adverted to was thus set forth in the defendant's answer:

'The defendant alleges that, prior to the date of the alleged contract mentioned in the complaint, the plaintiff agreed with the said Sarah M. McKibben to act as her agent in the matter of the sale and disposal of said shares of said stock for her, and represented to her by writing that the said company had lately sustained large losses, and that the shares aforesaid had just depreciated 40 per cent. in value, and were not worth the value she placed on them, and undertook to sell and dispose of them for her for $92,500; that, in fact, said company was then in extraprosperous condition, and had lately acquired a large cash reserve in its treasury, and was about to declare and pay a large dividend on said shares of stock, and that the shares had an increased value by reason of that fact, and had not depreciated in value; that plaintiff was then, and is now, president of said company, and knew the foregoing facts, and said deceased did not know said facts; and, so knowing, the plaintiff willfully and fraudulently concealed said facts from the deceased, and induced the deceased to believe that she was about to make an advantageous sale, and any and all action taken and communication had by deceased with plaintiff was induced by and based upon that belief on her part, brought to her mind as aforesaid.'

Claiming that this paragraph of his answer presented a distinct, affirmative defense, the appellant contends that, without a formal replication thereto, it was put in issue by virtue of an enactment by the legislature of Utah, which provides that 'every material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true; the statement of any new matter in the answer, in avoidance or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party.' 2 Comp. Laws Utah, § 3248. With a material issue thus presented, the appellant claims that the trial court erred doubly in not making a finding on the same and in not finding that it was sustained by the evidence.

In failing to find at all upon a material issue raised by the pleadings it is said that the court disregarded certain provisions of the laws of Utah, which are in the following terms:

'Sec. 3379. Upon a trial of a question of fact by the court, its decision must be in writing and filed with the clerk within thirty days after the cause is submitted for decision.

'Sec. 3380. In giving the decision, the facts found and the conclusions of law must be separately stated. Judgment upon the decision must be entered accordingly.

'Sec. 3381. Findings of fact may be waived by the several parties to an issue of fact, by failing to appear at the trial, by consent in writing filed with the clerk, or by oral consent in open court, entered in the minutes.'

As it appears in the present record that the defendant did not fail to appear, nor consent in writing or by oral consent in court to waive a finding of the issue in question, and as the court made written findings on other issues, it is claimed that the error of the court in failing to make a finding is thus made manifest.

On the part of the appellee it is claimed that the issue presented in the paragraph of the answer heretofore cited was not a material one, containing new matter in avoidance of the plaintiff's claim, but was essentially a mere traverse, equivalent to the general issue; that, whether material or not, it was not sustained by any substantive evidence; and that, therefore, there was no error in the action of the trial court, whose findings substantially covered all the real issues in the cause. The appellee cites as pertinent a decision of the supreme court of California, from the Code of which state the laws of Utah in question in this case are said to have been taken:

'When, upon the trial of a cause, the court renders its decision without making findings upon all the material issues presented by the pleadings, it is held that such decision can be reviewed upon a motion for a new trial. In such a case there has been a mistrial, and the decision, having been rendered before the case has been fully tried, is considered to have been a decision 'against law.' It will be observed, however, that this rule is only applicable in a case where the issues upon which there is no finding are 'material'; that is, where a finding upon which issues would have the effect to countervail or destroy the effect of the other findings. If a finding upon such issues would not have this effect, the issues cannot be regarded as material, and the failure to make a finding thereon would not be prejudicial. If the findings which are made are of such a character as to dispose of issues which are sufficient to uphold the judgment, it is not a mistrial, or against law, to fail or to omit to make findings upon other issues which, if made, would not invalidate the judgment. If the issue presented by the answer is such that a finding upon it in favor of the defendant would not defeat the plaintiff's right of action, a failure to make such finding is immaterial. If the complaint, as in the present instance, sets forth two or more grounds for relief, either of which is sufficient to support a judgment in favor of the plaintiff, a finding upon one of such issues is sufficient, and a failure to find upon the other does not constitute a mistrial, or render the decision against law.' Brison v. Brison, 90 Cal. 329, 27 Pac. 186.

The record discloses the affirmative findings of the trial court, which, of themselves, fully warrant the conclusion of law based upon them, that the plaintiff was entitled to recover. No assignments of error on exceptions taken ask or empower us to review those findings. If, then, those findings are to be accepted as justified by the evidence, it is difficult to see how the defendant was injured by the failure of the court to pass, in express terms, on those averments of the answer now urged. If, indeed, it be indisputably true, as so found, that by written correspondence between the parties Mrs. McKibben agreed to sell and the plaintiff to buy a stated number of shares of stock at a fixed price, and that the plaintiff, in due time and manner, tendered the purchase money, and demanded a delivery of the stock, and that the defendant, as executor of Mrs. McKibben, declined to receive the purchase money and to deliver the stock, those allegations of the answer which are now relied upon must be deemed to have been thereby negatived. In other words, the plaintiff's affirmative case is wholly inconsistent with the truth of the defendant's case, and the conclusive establishment of the truth of the former is necessarily a complete negative of the case asserted by the defendant.

This was the conclusion reached by the supreme court of the territory, which disposed of the question in the following terms: 'It is contended that the court erred in failing to find facts on the question of fraud set up in the answer. The court found separately and specifically that the contract set up in the complaint was sustained by the evidence. This finding necessarily negatives any fraud as alleged, and is sufficient to sustain the judgment.'

It is true that this ruling of the supreme court of the territory does not, even in a question of practice arising under the local law, preclude this court from reviewing it, as would a decision of a state supreme court in similar circumstances; but, unless a manifest error be disclosed, we should not feel disposed to disturb a decision of the supreme court of a territory construing a local statute. So far from discovering manifest error in that ruling, we concur with the supreme court of the territory in their disposition of the question.

The opinion of the supreme court of the territory, disclosed in the record, further shows that that court considered at length the evidence in the entire case, as well that sustaining the plaintiff's claim as that relied on by the defendant as showing fraud, and concurred in and affirmed the findings and judgment of the trial court. But we do not regard any aspect of the case as open for our consideration, except the errors assigned to the action of the supreme court of the territory in ruling that the findings of the trial court sufficiently embraced the issues presented by the pleadings.

The judgment of the supreme court of the territory of Utah is hereby affirmed. 

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