1. Assuming that the question has been adequately raised, the roper remedy for failure to make findings of fact, conclusions of law, and order for judgment is to direct them to be made rather than to put the parties to the expense of retrying the action. See *Page 268 Pioneer L. L. Co. v. Bernard, 156 Minn. 422, 195 N.W. 140. Ever since the decision in that case the uniform practice of this court in identical or similar situations has been to remand the case "for the making of a decision in accordance with the statute, the trial court to proceed with the case from the point at which the motion of defendants * * * was made." Hawkins v. Foasberg, 175 Minn. 252, 220 N.W. 951; and see In re Estate of Roberts, 166 Minn. 315, 319, 207 N.W. 629; Morrissey v. Morrissey, 172 Minn. 72, 75, 214 N.W. 783; Mienes v. Lucker Sales Co. 188 Minn. 162, 166, 246 N.W. 667; State ex rel. Boldt v. St. Cloud M. P. Assn. (concurring opinion),200 Minn. 1, 15, 273 N.W. 603; State, by Peterson, v. Anderson,207 Minn. 357, 291 N.W. 605; Fredsall v. Minnesota State L. Ins. Co. 207 Minn. 18, 23, 289 N.W. 780. This sound and consistent practice is now being ignored. This court is not entitled to assume that when the court below makes its findings and conclusions they will not be in accord with what the evidence produced justifies, and this notwithstanding the oratory that accompanied the dismissal. Until they have been made, we do not know what they will be.
2. Any error in this respect by the court below has not been properly raised. No request was made of the lower court that it make findings of fact, conclusions of law, and order for judgment. Moreover, appellants have not asked this court to reverse for this reason. For the proper procedure, see Pioneer L. L. Co. v. Bernard, 156 Minn. 422, 195 N.W. 140. Under these circumstances, it has been held by this court, and properly so, that failure to make findings of fact, conclusions of law, and order for judgment cannot be made a ground of complaint. Wood v. Wood, 137 Minn. 252, 163 N.W. 297. For this reason alone, the decision of the lower court should be affirmed.
3. Since no request was made to the court below for findings and no error has been assigned in that respect in this court, the case should proceed here as though the findings most favorable to the defendants had been made. See Swick v. Sheridan, 107 Minn. 130, 119 N.W. 791. The only substantial assignments of error *Page 269 of appellants are "that there was sufficient evidence to justify a verdict in favor of plaintiffs to reform the deeds in question" and "that the said dismissal is contrary to the evidence and is against the law." It has been uniformly held by this court that such general assignments of error are not sufficient. They must point out wherein the findings or decision are not supported by the evidence. Prosser v. Manley,122 Minn. 448, 142 N.W. 876; Nye v. Kahlow, 98 Minn. 81,107 N.W. 733 (and cases cited therein). This has not been done in this case.
4. If we are, nevertheless, irregularly to consider whether the evidence sustains the decision of the trial court, the question should be whether there is sufficient evidence to support findings favorable to respondents. In that respect the crucial question of fact is whether, through mistake, there was a discrepancy between the deed as executed and the agreement as made between plaintiffs and Mrs. Matter. No one can read the record in this case without observing the vague, indefinite, and sometimes evasive testimony of the plaintiffs on that point. Plaintiff Albert Czanstkowski insisted that their agreement with Mrs. Matter included "all of the land west of the road" — referring to the north-and-south road. But in his directions to Mr. Knoll he says he changed this to land west of the north-and-south section line. He admits that he made this change in describing the land to Mr. Knoll without the knowledge of Mrs. Matter. It was he who gave Mr. Knoll the description of the land to be covered. He gave him precise directions with respect to the east line of the property purchased. One is justified in believing that he described the north line of the property with equal precision, but when questioned on this his testimony became vague. He testified as follows:
"Q. How far north did you tell Mr. Knoll you wanted this property?
"A. I didn't say nothing. That was my brother, he showed how far.
"Q. You said you pointed to this piece on the map. Did you show him what the north and south lines were that you wanted? *Page 270
"A. That is everything because it is a piece like this and when I pointed on this that means the whole piece because there is no line drawn across or nothing.
"Q. In other words, you mean to say that the lines of the north here —
"A. When I show you on this that means the whole piece."
This plaintiff testified that he knew that a quarter of a quarter section of land (the description was in those terms less the south five acres) meant 40 acres, and that he saw that the deed included only 35 acres when he received it. The receipt he received from Mr. Knoll when the down payment was made also specified 35 acres. Yet at the time of the receipt of these instruments, and for several years thereafter, he made no objection whatever. There is no testimony that at the time of the transaction he intended to buy more than the amount he received by the deed as executed.
While the corroborating testimony of the brother August adds somewhat to plaintiffs' case, its indefinite character is sufficiently indicated by that set out in the majority opinion. It should be added that August stated that he was depending on the plaintiff Albert most of the time in the transaction in Mr. Knoll's office.
As against this testimony is that of Mr. Knoll, a disinterested person, which is relatively clear and explicit. He says that the plaintiff Albert Czanstkowski stated to him:
"I will get that 40 acres in there, he says, and this five acres off at the south, I will get that 40. I said, that 40 doesn't go to the north road, how you going to get in there? * * * They are going to let us drive in there, he says, and if we come to that, that they won't let us drive in, we will buy the strip from Mrs. Kaeppe. Mrs. Kaeppe owned the adjoining piece of land there. So that is what he told me. Well, I said, if that is what you are getting, just that 40 acres, then I will fix up the receipt for you and I know what you want, so I did. * * * It was the 40 acres that he told me he was getting less the five acres on the south and that is the way I drew up the paper." *Page 271
This testimony is denied by the plaintiffs, but it is not for us to measure the respective witnesses' credibility.
The lower court was therefore entitled to find that the mistake had not been established by clear and convincing proof. The contrary is not claimed by the majority opinion. The evidence set forth therein goes only to show that findings in favor of defendants were also justified. But it is not our function to pass upon the relative weight of the evidence. That is a matter for the trial court.
For the reasons given, the order of the court below should be affirmed, or, at the most, the case should be remanded with directions to make findings of fact, conclusions of law, and order for judgment.