I dissent.This is a judgment roll appeal. We do not know what evidence was before the trial court. As shown in the findings of fact (quoted more fully in the majority opinion) the trial court found, among other things, that “Prior to January 6, 1933, it was agreed between Edward Brown & Sons and Union Indemnity Company that the relationship between Union Indemnity Company on account of premiums on its policies and bonds collected by and paid to Edward Brown & Sons should be that only of a debtor and creditor and that . . . the only obligation or duty of Edward Brown & Sons in respect of any money so received should be a personal obligation to pay monthly to Union Indemnity Company the balance, if any, due after allowing credit to Edward Brown & Sons for funds expended by it on behalf of Union Indemnity Company, including return premiums paid on account of cancellations, and, on January 6, 1933 said agreement was fully performed.”
The above quoted finding, standing alone, fully supports the judgment insofar as concerns that phase of the case upon which the majority opinion bases the reversal. To escape or overcome the effect of this finding of ultimate facts the majority opinion relies upon the proposition that (a) certain probative facts were found which, it holds, do not necessarily establish such ultimate facts and that (b) the findings do not set forth other probative facts which would establish such ultimate facts. From that proposition the inference is drawn, or presumption indulged, in favor of reversing the judgment, that no evidence was produced sufficient to support the finding of ultimate facts. I do not find such inference or presumption tenable upon the record before us.
It has been sound and long-established law, which I deplore *485seeing disturbed, that “In reviewing the sufficiency of the findings to support the judgment, regard will be had to the ultimate facts found, and not to mere probative facts, which are not shown by the findings to be the only facts proved, and from which alone the court finds the ultimate facts. In the absence of such showing, the mere circumstance that some of the probative facts are inconsistent with the ultimate facts will not prevent the ultimate facts from controlling” (2 Cal. Jur. 872-873, § 511) and “an appellate court in reviewing the findings will give them a liberal construction in support of the judgment.” (Id., p. 871.)
Here, the probative findings on which the majority relies to overcome the finding of ultimate facts are inadequate to that end. They may be insufficient in themselves to establish the ultimate facts but they are not inconsistent with them and do not preclude the existence of evidence which would support the finding of ultimate facts. “Any uncertainties in the findings are to receive such construction as will uphold rather than defeat the judgment” (2 Cal.Jur. 871, § 511) and upon a judgment roll appeal it will be presumed that competent evidence sufficient to sustain the findings was received without objection and “that there was no evidence before the court which in any respect qualified or limited the effect of the findings.” (2 Cal.Jur. 877-878, § 514.) See, also, Carpenter v. Froloff (1939), 30 Cal.App.2d 400, 407 [86 P.2d 691] ; Stiles v. Bodkin (1941), 43 Cal.App.2d 839, 840 [111 P.2d 675]; Lamanet v. Lamanet (1937), 18 Cal.App.2d 402, 405 [63 P.2d 1195]; Whitney v. Redfern (1940), 41 Cal.App. 2d 409, 413 [106 P.2d 919],
In the last cited case it was held that “Upon an appeal on the judgment roll alone, only the ultimate facts found by the court, not the probative facts which have no proper place in the findings, can be considered, and it is only in those cases where it clearly appears that the ultimate fact found is based upon and edduced from the findings of probative facts, and it is plain that the latter do not justify nor support the ultimate fact found, that the findings of probative facts will control that of the ultimate fact, and so deprive the judgment of support. ’ ’
In Perry v. Quackenbush (1894), 105 Cal. 299, 305 [38 P. 740], this court held that “Findings of probative facts will not, in general, control, limit, or modify the findings of the *486ultimate fact. The province of the trial court is to find the ultimate facts, and not probative facts. If, from a consideration of the probative facts, this court should determine that they did not justify the finding of the ultimate fact it would determine that the evidence was insufficient to justify the decision. This, it has been repeatedly held, cannot be done in this mode.” (See, also, Breeze v. International Banking Corp. (1914), 25 Cal.App. 437, 443 [143 P. 1066]; Pio Pico v. Cuyas (1873), 47 Cal. 174, 178.)
The finding of ultimate facts in the record here appears to fully support the judgment. Since the findings do not preclude the existence of evidence to support the ultimate facts and do not establish probative facts which are essentially inconsistent with the ultimate facts found it seems to me that consideration for sound administration of justice demands that we affirm the judgment.
Edmonds, J., concurred.
Respondent’s petition for a rehearing was denied January 22, 1945. Edmonds, J., Sehauer, J., and Spence, J., voted for a rehearing.