This cause was before the late Supreme Court. The principles of law applicable to the case were then declared, and the cause remanded for a new trial. (21 Cal. 92.)' The appellant insists, that, so far as anything is shown to the contrary by the record, on the second trial the Court and counsel proceeded on the theory that the facts as well as the law had been settled, and that only an account remained to be taken ; that no evidence on the other issues in the case appears to have been introduced, and that the main issues formed by the pleadings do not appear to have been tried or determined. The respondent’s counsel, on the contrary, avers, that all the issues were in fact tried, notwithstanding the fact that the record does not affirmatively show it. On the former appeal a new trial was ordered in general terms, and the cage undoubtedly went back for trial upon all the issues of fact raised by the pleadings. It does not affirmatively appear in the record whether testimony was introduced on all of the issues referred to by counsel for appellant or not. The record does not purport to contain all the evidence. The statement on motion for new trial designates the grounds of the motion, and, as required by section one hundred ninety-five of the Practice Act, specifies certain particulars, in respect to which the appellant would claim the findings to be unsupported by the evidence, all of which .relate to questions affecting the state of the account between the parties. The statute requires the testimony in the statement to be confined to those particulars. If any testimony in favor of plaintiff bearing upon the points specified was omitted by defendant, it was the duty of plaintiff’s counsel to see that it was supplied by amendments. But he was not only not required to introduce any testimony not bearing upon other points, but it would have been improper for him to do so. The presumption, therefore, is, that the statement does not contain all of the testimony, or any testimony upon the points not specified. Under the statute, as it now stands, it must be presumed that the verdict
Exceptions were taken to the findings as being defective in several particulars, in pursuance of the Act of 1861 (Laws 1861, p. 589), and defendant moved to vacate them-on that ground. The facts were not so fully stated in the findings as is desirable in cases of the character under consideration. In most of the material particulars sufficiently designated in the exceptions, the defects were subsequently supplied by amendments filed by the Judge. In some of the exceptions the respondent not only designated the point upon which he desired a finding, but also designated how he desired the Court to find upon the point, and excepted to the refusal to find in the way. designated. We have often seen similar exceptions in other cases. There seems to be on the part of many, a misapprehension as to the 'character of the exception to be taken under the Act of 1861. These exceptions are not—as seems to be supposed—to be taken to the finding, on the ground that a fact is erroneously found. Errors in the finding are not to be corrected in this mode. Hor is there any such practice provided for in this Act as vacating findings on the ground that they are defective. The design of the statute is to enable the Court, at the instance of the party, to supply defects, as where there is an omission to make any finding at all, or to find on any issue of fact essential to the determination of the rights of the parties. A party is entitled to a finding, and he is also entitled to have a finding upon every issue raised, which is essential to the determination of the case. If the Judge neglects to file his decision in writing, stating the facts found, and his conclusions of law, or if he omits to find upon any issue essential to the determination of the case, the party desiring a finding may except for the want of a finding in the former case, or for a defect in the latter; but when he excepts for defects, the “particular defects shall be specifically and particularly designated”—that is to say,
While on this subject—although the finding in this case is not objectionable on that ground—we desire to suggest to District Judges another fault of frequent occurrence in the cases appealed to this Court. In many instances the finding is an opinion rather than a finding of facts and conclusions of law. In it the facts found, a rehearsal of evidence, without stating the fact supposed to be proven by it, conclusions of law and argument, are all mixed up in such a way that it is difficult, if not impossible, to tell what the ascertained facts of the case are. The finding of facts and conclusions of law contemplated by the statute is something different from an opinion. The finding should consist of a concise, distinct, pointed and separate statement of each specific, essential fact established by the evidence, in its proper order, without any of the testimony by which the facts are proved, followed by a similar statement of the conclusions of law drawn from the facts thus found. This is the finding contemplated by the statute, which is to be annexed to and form a part of the judgment roll. If an opinion is written—and we are always glad to find one in the transcript—it should be entirely separate from the finding, and filed among the papers in the case. The Practice Act recognizes an opinion as something different from a finding. (Sections 180, 303, 346.)
Upon comparing the fourth original and very general finding, to the effect that the rents and profits have fully repaid
Appellant insists that the Court erred in refusing to make an interlocutory order settling the principles upon which the accounting was to be had, and to refer it to a Commissioner or referee to state the account. The Judge is at liberty to state the account between the parties and determine all the questions in the case himself, if he chooses to do so. But in a case like this, where his time is limited, it would be very inconvenient, if not almost impossible, to do it. It would be singular, indeed, if, in the ordinary hurry of a trial by the
A mortgagee in possession “ will be accountable for the actual receipts of the net rents and profits, and nothing more, unless they were reduced or lost by his wilful default or gross negligence. By taking possession he imposes upon himself the duty of a provident owner, and he is bound to recover what such an owner would by reasonable diligence have received.” (4 Kent’s Com. 166.) This is the rule applicable to the present case. During the year 1859, when the defendant worked the premises himself, he is bound to account for the net proceeds of the farm after paying all tfie necessary expenses of carrying it on. He is entitled to deduct the taxes paid and necessary repairs. As a general rule, the cost of new and permanent improvements cannot be allowed. There may, however, be special circumstances which would justify a Judge in making the allowance. In this case the value of the fencing cannot be allowed unless the fence constructed was necessary to the protection of the crops. But if the value of the rents and profits were enhanced in consequence of the building of the fence, defendant cannot be charged with such enhanced value, unless an allowance is also made to him for the value of the fence. Although the defendant was chargeable for the actual net profits while he carried on the farm, he was not bound to work it himself, provided he could rent for the full yearly value of the premises to suitable parties, who would manage it in a husbandlike manner. And while he thus rented it at its full value, he was only chargeable for such value. Of course he would be chargeable for all the rents received, after deducting necessary expenses, during the years the premises were rented. The evidence, therefore, should be directed to the value of the premises and the rents received, and not to the actual amount of the products raised by the tenant, and the net amount such tenant was enabled to realize. The tenant took the risk of a favorable or unfavora
After an attentive examination of the transcript and briefs of counsel, we are forced to the conclusion that the judgment should be reversed, and that so much of the finding as relates to the accounting should be vacated, and to that extent a new trial and a re-accounting between the parties on the principles herein indicated be had. And it is so ordered.
Mr. Justice Currey expressed no opinion.
By the Court,