Beneficial Life Ins. Co. v. Mason , 108 Utah 437 ( 1945 )

I concur in the result. The finding of vindictiveness is a conclusion of fact. As said in Sandell v. Hoskins, 104 Utah 50,137 P.2d 819, it is ofttimes difficult to draw a strict line between conclusions of fact and of law. In many cases they are mixed. For that reason this court will not be meticulous in trying to determine the line if the conclusions of fact are partly embedded under a title of conclusions of law or if some conclusions of law are contained among or under the designation of conclusions of fact. The important thing is that an effort be made to separate them if they are severable and more important still that when both conclusions of fact and of law are reviewed there appears to be support for the judgment in the facts as found and in the law applicable to them. In this case we do not have a question of admixture but solely a question of whether there are sufficient facts found to support the conclusion that the plaintiff's assignee is entitled to only $50 attorney's fee.

Since this is an appeal on the judgment roll, without benefit of a transcript of the testimony, we should perhaps assume that there was evidence to support the finding of the court that

"but for the vindictiveness of Wayne N. Mason the matter could and would have been settled completely for an attorney's fee of $50.00 and that under all the circumstances the sum of $50.00 is a fair, just, reasonable and equitable amount to allow as and for attorney's fees."

There may be some doubt as to whether the court should not have further broken down its conclusion or finding of fact as to such matter into such findings so as to present facts from which it could be inferred that the vindictiveness of Wayne Mason did result in the necessity for greater attorney's fees. But there were findings reciting evidence relative to disputes and transactions between Wayne N. Mason and his co-defendants in this action over matters pertaining to and growing out of probate proceedings of their father's estate which perhaps throw some light on the conduct which the court characterizes as "vindictive." I agree with the opinion of Mr. Justice WADE that from the findings we must conclude that the court determined that Wayne Mason and not Rice was the real party plaintiff or party in interest. There is nothing inconsistent between a finding that a plaintiff is the legal holder of a note and mortgage and entitled to foreclose and a finding that such plaintiff or one whom he actually represents acted in such fashion against the defendants prior to foreclosure that he is not entitled to recover as against the defendants his full attorney's fee. That does not mean that the attorneys may not collect from the owner of the mortgage the reasonable value of their services.

But granting that Mr. Justice WADE is correct in that conclusion, which I do, I cannot see how it follows that the matter of vindictiveness becomes immaterial. The very conclusions of the court show that it did not think such state of mind and action by Wayne Mason was immaterial. In fact, the court concluded that his actions based on vindictiveness resulted in the necessity of running up attorney's fees to $500. How then can it be said that

"the question of whether he was vindictive was immaterial?"

But I admit that it may be difficult to glean from the findings just how vindictiveness of Wayne Mason affected the defendants' rights. Under the conclusion of Mr. Justice WADE, the case should be treated as if there were not sufficient findings, and the record returned to the court with instructions to make more adequate findings from which I assume an appeal would again lie in which the whole record could be brought up. I see no great objection to that procedure and I therefore concur in the result.