Traber v. Crawford , 28 N.C. App. 694 ( 1976 )

ARNOLD, Judge.

In actions tried upon the facts without a jury the trial judge is required to make findings of fact and conclusions of law. G.S. 1A-1, Rule 52(a) (1) directs the court to “find the facts specially and state separately its conclusions of law thereon and direct entry of the appropriate judgment.”

The reason for requiring a separate statement of the conclusions of law is to allow the appellate courts to determine what law the trial court applied in directing the entry of judgment. Hinson v. Jefferson, 287 N.C. 422, 215 S.E. 2d 102 (1975). The trial court’s conclusions of law are subject to review on appeal. Davison v. Duke University, 282 N.C. 676, 194 S.E. 2d 761 (1973).

It was concluded by the court that the plaintiff and defendants “did not in January of 1971 at the meeting in Mr. William E. Greene’s office, enter into a valid and lawful [sic] binding contract as the cost of the hotel was not definitely established and agreed upon, but was estimated to cost $6,200,000.”

Defendants maintain that the judge’s conclusion of law is an incorrect statement of the law, and we agree. Assuming arguendo that such an agreement existed, an agreement to pay 5% of the cost of the hotel as compensation for architectural services provides a sufficient method of determining the final amount to be paid. 2 N. C. Index, Contracts, § 3; 17 Am. Jur. 2d § 82.

Where the trial court passes on the facts the court is required “to find the facts on all issues of fact joined on the pleadings,” declare the resulting conclusions of law, and enter judgment accordingly. Campbell v. Blount, 24 N.C. App. 368, 371, 210 S.E. 2d 513 (1975); Coggins v. City of Asheville, 278 N.C. 428, 180 S.E. 2d 149 (1971) ; Littlejohn v. Hamrick, 15 N.C. App. 461, 190 S.E. 2d 299 (1972).

The judgment entered in the present case does not comply with the requirement to find facts on all issues joined on the pleadings. The defendant specifically pleaded accord and satisfaction in bar of any recovery by plaintiff. Defendants further alleged in their answer that if the court determined that defendants were in any way indebted to plaintiff that the amount due should be reduced by the value of the membership of plaintiff in the limited partnership. There is nothing in the judgment determining these issues. The judgment is therefore insufficient because the findings do not cover all the issues of fact joined on the pleadings, even though there was evidence from which findings could have been made. Littlejohn v. Hamrick, supra.

While the findings of fact by the trial court might appear to support a conclusion that there was an express contract we feel that this is an appropriate case to exercise our discretion and award a new trial on all issues raised by the pleadings. See Ayers v. Tomrich Corp., 17 N.C. App. 263, 193 S.E. 2d 764 (1973) ; Kinney v. Goley and Crowson v. Goley and Noll v. Goley, 6 N.C. App. 182, 169 S.E. 2d 525 (1969).

New trial.

Judges Parker and Hedrick concur.