Wrigglesworth v. Wrigglesworth

Tayloe, J.

After a careful examination of the case, we are unable to say that the finding of the learned circuit judge is against the weight of evidence. „ On the other hand, giving proper weight to the fact that the plaintiff did not commence his action for relief until ten years after it accrued, the finding of the learned judge is fairly sustained by the evidence.

The exception that there were no sufficient findings of fact or conclusions of law, we do not think well taken. The court below found generally that 'the allegations of the complaint were not proved, and that, as a conclusion of law, -the complaint of the plaintiff should be dismissed, with costs. Although the findings are very general and are contained in the judgment itself, we think they are sufficient, especially as there was no exception that the findings were not separate from the judgment, the exception being simply “ that no sufficient findings of fact or law have been made or filed.” If the defendant desired that there should have been any particular finding of fact, he should have called the attention of the court to the matter of fact upon which he desired a separate finding, and, when the court found upon the facts so pointed out, should have taken an exception, if the finding was not satisfactory. Mead v. Supervisors, 41 Wis., 205 . This court has held that when an action is tried by the court without a jury, the judgment will not be reversed .because there are no separate findings of fact and conclusions of law, unless an exception be taken for that cause in the court below. Sheldon v. Rockwell, 9 Wis., 166 . In Sayre v. Langton, 7 Wis., 214 , it was held that if the judgment found all the facts necessary to *258 sustain the judgment, it was sufficient,.in the absence of an exception that such findings were not separate from the judgment. In Remington v. Willard, 15 Wis., 584 , it was held that a general finding, “ that, upon the proof by plaintiffs, the court finds all the facts set forth in the complaint,” was sufficient. See also Wittmann v. Watry, 37 Wis., 238 . In Sanford v. McCreedy, 28 Wis., 103 , it was held that if the evidence sustained the judgment, it would not be reversed, though the findings were defective or erroneous. See also Knox v. Johnston, 26 Wis., 41 . Whether, in any case, upon an appeal from a judgment- rendered in an action tried by the court without a jury, this court would reverse the judgment solely for the want or insufficiency of separate findings of fact and conclusions of law, it is not necessary to decide in this case. See Sage v. McLaughlin, 34 Wis., 550 , and Sanford v. McCreedy, supra.

In this case, the judge who tried the case having substantially found that the defendant did not make the contract set forth in the complaint, nor do any of the other acts upon which the plaintiff relies as a ground for the relief demanded, and the exception to the finding by the plaintiff not being put upon the specific ground that it was not separate from the judgment, we are induced to hold that it was sufficient to sup port the judgment. As the judgment is supported by the evidence, it is at best a technical objection to a matter of form, which, in furtherance of justice, should be disregarded.

We think there was no error committed by the court in the reception of the evidence objected to by the plaintiff. This court- has held that, even in the case of a written contract, “ evidence is always admissible to show the circumstances under which it was made, and the relations of the parties to the subject matter, and to each other respecting the subject matter, where, on the face of the contract, its terms are obscure in themselves, in relation to the subject matter.” Lyman v. Babcock, 40 Wis., 503 . This rule applied to this.case fully justified the court in admitting the testimony objected to, not for the purpose of explaining the meaning of the letters re *259 ferred to, but in order to enable tbe court to give a proper construction to the terms of the same.

The circuit court was right in refusing to order an accounting as to the moneys advanced by the plaintiff. The action was not for an accounting, but to enforce the specific performance of an alleged parol agreement in relation to real estate. It was a purely equitable action, and, the court having held that there was no such contract and no trust to be enforced, it was the duty of the court to dismiss the complaint, and leave the plaintiff to his action at law for the recovery of the money advanced. Especially should this be so in a case like the present, where the claim for money loaned might be met by a plea of the statute of limitations, which could not be pleaded to the action to enforce the trust.

This court has repeatedly held that when the plaintiff’s complaint is for relief in equity, he cannot in that case have a judgment upon a purely legal cause of action. See Newton v. Allis, 12 Wis., 378 ; Stevens v. Brooks, 23 id., 196; Larkin v. Noonan, 19 id., 82; Supervisors of Kewaunee County v. Decker, 30 id., 624, and 34 id., 378.

By the Court. — The judgment of. the circuit court is affirmed.

KyaN, C. J., took no part.