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District Court of Appeal, Third District, California.

OFFER et ux. v. McMILLAN et al.

Civ. 7920.

Decided: January 23, 1951

Darold D. De Coe and Norman R. Samuelsen, Sacramento, for appellant. Wilke & Fleury, Sacramento, for respondent.

The plaintiffs have appealed from a judgment in favor of the defendants in an action for damages for fraud. Counsel for appellants concede that the findings are supported by evidence but contend that, as indicated by his written opinion, the trial judge required clear and convincing evidence rather than a mere preponderance of the evidence for proof of fraud, and that this constituted error. There is no basis for a discussion of this point, for we cannot take the opinion into account. ‘The findings and conclusions constitute the final decision of the court and an oral or written opinion cannot be resorted to for the purpose of impeaching or gainsaying the findings and judgment.’ Buckhantz v. R. G. Hamilton & Co., 71 Cal.App.2d 777, 781, 163 P.2d 756, 759.

The judgment is affirmed. Appeal from order denying new trial dismissed.

DEIRUP, Justice pro tem.

ADAMS, P. J., and PEEK, J., concur.

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