BURNAND v. IRIGOYEN

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District Court of Appeal, Second District, Division 2, California.

BURNAND v. IRIGOYEN et al.

Civ. 15248.

Decided: November 13, 1946

Saul Ruskin, of Los Angeles, for appellants. Albert W. Leeds, of Los Angeles, for respondent.

This is an appeal from a judgment in favor of respondent, after trial before the court without a jury, of issues raised by a cross-complaint filed by appellants and the answer thereto, in an action to recover sums of money paid under a conditional sales agreement.

The essential facts are these:

Respondent filed an action to quiet title to a residence and its furnishings located in Los Angeles alleging that on September 7, 1937, respondent and her then husband (they having been divorced prior to the present action) entered into a conditional sales agreement with appellants to sell the aforementioned property to them for the sum of $33,500; that the buyers had defaulted in payments due under the agreement and that respondent had acquired her former husband's interest in the property.

After the commencement of the action appellants served upon respondent notice that they disaffirmed the agreement for the reason that they had entered into the contract with respondent and her husband while they were minors.

Appellant Marie Antoinette Irigoyen answered the complaint and also through her guardian ad litem filed a cross-complaint seeking the return of money that had been paid under the contract on the ground that the contract was void because she was a minor at the time of its execution.

When the action was called for trial respondent waived any right to relief upon her complaint and proposed that the cause proceed to trial on the cross-complaint. Upon motion of appellants, consented to by respondent, the complaint was dismissed and a judgment of dismissal was ordered in favor of appellants. Thereafter the cause proceeded to trial on the cross-complaint of appellant Marie Antoinette Irigoyen and respondent's answer thereto. Evidence oral and documentary was introduced in behalf of said appellant. At the close of her case, respondent without offering evidence rested and the trial court thereafter entered a judgment in favor of respondent based upon findings which failed to make any finding as to said appellant's age at the time the contract was executed.

This is the sole question necessary for us to determine:

Did the trial court commit prejudicial error in failing to make a finding as to the age of appellant Marie Antoinette Irigoyen at the time the contract of September 7, 1937 was executed?

This question must be answered in the affirmative.

In the cross-complaint it was alleged that on September 7, 1937, the date the contract between the parties was executed, cross-complainant was under the age of 18 years. In the answer to the cross-complaint the foregoing allegation was denied by respondent. Hence one of the material issues in the case was the age of the cross-complainant on the date of the execution of the contract. Evidence thereon was introduced as to the age of the cross-complainant, but the trial court failed to make a finding as to her age.

It is the settled law in California that where an action is tried before the court without a jury unless findings are waived they are required on all material issues raised by the pleadings and evidence. If in such a case the court renders judgment without making findings on all material issues the judgment must be reversed on appeal. (James v. Haley, 212 Cal. 142, 147, 297 P. 920. See also cases cited in 23 McKinney New Calif. Digest, [1933] p. 577, sec. 286; Powell v. Johnson, 50 Cal.App.2d 680, 683, 123 P.2d 875.)

In view of the foregoing rule it is clear that as the trial court failed to find upon a material issue raised by the pleadings relative to which evidence was received, such omission constitutes prejudicial error and the judgment must be reversed.

As a result of our conclusions it is unnecessary to consider other questions urged by appellants as grounds for reversal of the judgment.

For the foregoing reasons the judgment is reversed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.