In an action upon a contract to sell shares of stock to the
plaintiff, the defendant set up allegations of fraud. A jury was
waived and the court found separately and specifically upon all the
allegations respecting the contract, and that the contract set up
in the complaint was sustained by the evidence. No error was
assigned or exceptions taken.
Held:
(1) That this Court cannot review those findings.
(2) That they are sufficient to sustain the judgment.
This was an action brought in the District Court of the Third
Judicial District of Utah by Henry C. Haarstick against Moylan C.
Fox, executor of Sarah M. McKibben, deceased, to recover damages
for the refusal of the defendant to assign and transfer to the
plaintiff 1,414 shares of the capital stock of a corporation known
as the St. Louis and Mississippi Valley Transportation Company, as
called for by a contract subsisting between the plaintiff and Mrs.
McKibben during the lifetime of the latter.
At the trial, a jury was waived and the case was tried by the
court. The trial judge made certain findings of facts and
conclusions of law as follows:
"1. That the defendant, Moylan C. Fox, is the executor, duly
qualified and acting, of the last will and testament of Sarah M.
McKibben, deceased."
"2. That by written correspondence between Sarah McKibben and
the plaintiff dated February 25, 1890, and March 1, 1890, the said
Sarah McKibben contracted to sell and deliver to the plaintiff,
within forty days after said date, 1,414 shares of the capital
stock of the St. Louis and Mississippi Valley Transportation
Company, a corporation organized under the laws of the State of
Missouri, for the sum of ninety-two thousand five hundred
dollars."
"3. That before the time of the completion of said contract
Page 156 U. S. 675
arrived, to-wit, on the 5th day of March, 1890, the said Sarah
M. McKibben died, and the said executor then refused, and ever
since has refused and declined, to deliver said stock and to carry
out and fulfill the contract."
"4. That the plaintiff has been ready and willing to pay the
said sum of ninety-two thousand five hundred dollars for the said
stock upon the delivery thereof, but the said executor still
refuses and declines to accept the same."
"5. That the said stock at the time when the same should have
been delivered, to-wit, on or about the 10th day of April, 1890,
was of the value of one hundred and four thousand five hundred
dollars, and that the plaintiff was damaged, by reason of the
defendant's failure to deliver the said stock and fulfill the said
_____, in the sum of twelve thousand dollars, with interest thereon
at the rate of eight percent per annum, from the 10th day of April,
1890, amounting at this date to one thousand four hundred and
eight-five dollars, and making the plaintiff's damage in all
thirteen thousand four hundred and eighty-five dollars."
"6. That on the 30th day of October, 1890, the plaintiff
presented a claim in writing, pursuant to the statute in such case
made and provided, demanding the payment of the sum of thirty-six
thousand one hundred and seventy-four dollars damages to Moylan C.
Fox, executor of said Sarah M. McKibben, deceased, and that on said
day the said executor rejected said claim."
"As conclusions of law from the foregoing facts, the court now
hereby finds and decides:"
"That the plaintiff is entitled to have and recover of and from
the defendant the sum of thirteen thousand four hundred and
eighty-five dollars, with interest thereon from this date until
paid at the rate of eight percent per annum, and costs of suit, and
judgment is hereby ordered to be entered accordingly."
A motion for a new trial was made and overruled, judgment was
entered, and an appeal was taken to the Supreme Court of the
Territory of Utah, from whose judgment affirming that of the court
below an appeal was taken to this Court.
Page 156 U. S. 676
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the 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 percent 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
extra-prosperous 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
Page 156 U. S. 677
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."
Sec. 3248, Compiled Laws of Utah, vol. 2, p. 251. 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
Page 156 U. S. 678
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.
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
Page 156 U. S. 679
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
Page 156 U. S. 680
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.
