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Docket Number

No. 32236.

Attorney(S)

Ralph B. Potts, for appellants. Ferd J. Schaaf, for respondents.

Judges

OLSON, J. (dissenting)

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Smart Summary

Case Summary: Robert A. Bowman et al. v. W.E. Webster et al., 253 P.2d 934 (Wash. 1953)

Factual and Procedural Background

Plaintiffs (vendees) sought specific performance, reformation of a contract, or alternatively damages of $4,000, to require defendants (vendors) to deed to them a triangular area of lawn and flower beds adjacent to the residence property they purchased (Lot 22) in Seattle. The complaint alleged that real-estate agents and the appearance of the property led plaintiffs to believe the triangular area was part of Lot 22, and that defendants remained silent about the true boundary. After purchase, plaintiffs discovered by survey that the triangular area lay in adjacent Lot 21. Defendants had begun construction on Lot 21 and intended to alter the bulkhead and landscaping. Defendants, in their answer, denied misrepresentation, asserted they had advised plaintiffs as to true boundaries (or at least denied responsibility for any deception), and admitted construction but denied irreparable damage.

The case was tried to the court without a jury. The testimony was disputed on principal issues. An additional factual issue at trial involved whether plaintiffs, by obtaining a mortgage, paying the balance, and accepting a deed describing only Lot 22 after boundary questions arose, waived rights to reformation or specific performance; and whether defendants had agreed to grant an easement or otherwise protect plaintiffs' use of the triangular area. The trial court entered findings of fact and conclusions of law and granted judgment for defendants. Plaintiffs appealed.

Legal Issues Presented

Whether the trial court's findings of fact were adequate under Rule of Superior Court 17 (and RCW 4.44.050) in an equity action tried to the court without a jury, particularly where judgment was entered for the defendant after a complete trial on the merits.
Whether, on the existing findings, plaintiffs were entitled to judgment for specific performance, reformation, or damages (including whether any waiver was established).
What remedy the appellate court should apply when findings of fact on material issues are lacking (e.g., reverse and remand for findings, reverse for new trial, or remand without reversal to supplement findings).

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

The cultivated triangular area of lawn and flowers appeared to be part of Lot 22 and was represented (by agents and by silence of defendants) as included in the tract sold; plaintiffs relied on that appearance and representation in purchasing Lot 22 for $14,500.
Under the circumstances, defendants were under an obligation to indicate the true westerly boundary and failed to do so; plaintiffs relied on that omission.
On the findings as entered (particularly portions of "finding" No. 5), appellants contend they were entitled to judgment unless they were held to have waived their rights; they also assign error to any holding that they waived their rights.

Respondents' (Defendants') Arguments

Defendants denied that the triangular area gave the appearance of being part of Lot 22 or that any representation to that effect was made by the real-estate agent.
Defendants admitted plaintiffs viewed the property in their presence and expressed satisfaction, but asserted plaintiffs were advised as to the true boundaries; defendants denied knowingly permitting plaintiffs to buy under a mistaken belief.
Defendants admitted beginning construction on Lot 21 and intending to change the bulkhead and landscaping but denied it would cause irreparable damage; they also raised the factual issue (and an implied legal defense) that plaintiffs may have waived rights by later conduct (mortgage, payment, deed acceptance) after the boundary controversy arose.
Respondents contended that "finding" No. 5 was merely a resume of plaintiffs' testimony and not an actual finding by the trial court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Slayton v. Felt, 40 Wn. 1, 82 P. 173	Authority that findings of fact are required where judgment for defendant follows a complete trial on the merits.	Used to support the proposition that Rule 17 applies to judgments for defendants after a full trial.
Western Dry Goods Co. v. Hamilton, 86 Wn. 478, 150 P. 1171	Authority that findings are required in such cases.	Cited as part of the line of cases supporting the requirement that findings be made when judgment for defendant follows a full trial.
Boe v. Hodgson Graham Co., 97 Wn. 444, 166 P. 779	Authority supporting the findings requirement; noted as effectively overruling Lamar v. Anderson.	Relied on to show earlier contrary decisions were no longer controlling and to support the findings requirement.
State ex rel. Eilers Music House v. French, 100 Wn. 552, 171 P. 527	Authority in the line supporting findings requirement for defendant judgments after full trial.	Included among cases showing the rule's application.
Balzer v. Aukamp, 166 Wn. 268, 6 P.2d 614	Cited for the proposition that findings are required (here in context of setoff).	Applied as authority that findings are necessary to permit appellate review when issues on the merits have been tried.
Hay v. Chehalis Mill Co., 172 Wn. 102, 19 P.2d 397	Authority supporting the findings requirement in similar contexts.	Used as precedent that findings must be made after a complete trial.
Cleator v. Daniels, 24 Wn.2d 542, 166 P.2d 461	Authority supporting the same rule.	Included in the cited group of cases demonstrating the rule's scope.
Tobacco v. Rubatino, 35 Wn.2d 398, 212 P.2d 1019	Authority that findings are required where appropriate.	Relied on to support reversal/remand practice when findings are inadequate.
Mertens v. Mertens, 38 Wn.2d 55, 227 P.2d 724	Authority discussing adequacy of findings and their purpose on appeal.	Quoted approvingly as reaffirming the purpose of findings to enable appellate review.
Lamar v. Anderson, 71 Wn. 314, 128 P. 672	A contrary decision holding (earlier) that findings were not required in similar circumstances.	Identified as a contrary case; court noted it was effectively overruled by Boe v. Hodgson Graham Co.
Cochran v. Nelson, 26 Wn.2d 82, 173 P.2d 769	A contrary decision (cited earlier) that findings were not required.	Discussed as a prior contrary decision that cited Lamar and Wise; the court concluded Cochran cannot now be regarded as authority to the contrary.
Wise v. Vaughan, 160 Wn. 505, 295 P. 126	Cited in Cochran; did not involve judgment after a complete trial.	Noted as distinguishable because it did not involve a judgment entered after a complete trial.
Kinney v. Sando, 28 Wn.2d 252, 182 P.2d 45	Recognizes by implication the rule that findings are required where defendant judgment follows a full trial.	Mentioned as recognizing (by implication) the findings requirement.
Harbican v. Chamberlin, 82 Wn. 556, 144 P. 717	Authority that the court need not make findings on every item of evidence.	Cited to show the rule does not require findings on every evidentiary item.
Dillabough v. Okanogan County, 105 Wn. 609, 178 P. 802	Authority that ultimate findings are required as to material issues.	Used to support the proposition that ultimate findings on material issues are necessary.
Walters v. Munson, 176 Wn. 469, 30 P.2d 224	Authority on both limits of required findings and the necessity of ultimate findings on material issues.	Cited in support of the court's statements about the scope of findings required.
Shorrock v. Shorrock, 185 Wn. 623, 56 P.2d 674	Cited for the principle that not every evidentiary item requires a finding.	Included among cases demonstrating that trial courts need not find on every piece of evidence.
Taylor v. Lubetich, 2 Wn.2d 6, 97 P.2d 142	Authority on the limited scope of required findings.	Included in the group supporting that not every item of evidence must be separately found.
Williamson v. United Brotherhood of Carpenters Joiners of America, 12 Wn.2d 171, 120 P.2d 833	Authority used similarly (scope of findings).	Cited with other cases to define limits of the findings requirement.
Kinnear v. Graham, 133 Wn. 132, 233 P. 304	Explains the purpose of findings: to enable appellate review by showing what was decided and how.	Quoted for the proposition that findings must make clear what questions were decided and how, to satisfy requirements.
Keller v. Waddington, 142 Wn. 474, 253 P. 646	Cited among authorities requiring ultimate findings on material issues.	Applied as supporting precedent for requiring adequate findings.
Michaelson v. Hopkins, 37 Wn.2d 453, 224 P.2d 350	Example of remand (without reversal) to permit additional arguments after supplying a necessary finding.	Cited as an instance of a lenient remedy where a single incomplete finding was supplied post-appeal.
Payne v. Vinecore, 40 Wn.2d 746, 246 P.2d 448	Authority that an oral or memorandum decision can sometimes clarify inadequate findings; conclusions of law can serve a similar function.	Used to note that oral/memo opinions or conclusions of law may sometimes cure inadequate findings.
Kennedy v. Derrickson, 5 Wn. 289, 31 P. 766	Shows the extreme remedy of reversing and remanding for a new trial where appropriate.	Included among cases where reversal and a new trial were ordered because of inadequate findings.
Jones v. Bard, 40 Wn.2d 877, 246 P.2d 831	Another example of reversal and remand for a new trial.	Cited as precedent for that remedial option.
Colvin v. Clark, 83 Wn. 376, 145 P. 419	Authority for the frequently used remedy of reversing and remanding with instructions that the trial judge make and enter necessary findings and conclusions.	Relied on as precedent for remanding to the trial judge to supply findings rather than ordering a new trial.
Barto Co. v. Aylmore, 125 Wn. 394, 216 P. 857	Another case where remand for findings was ordered.	Included to show the established remedial practice.
State ex rel. Dunn v. Plese, 134 Wn. 443, 235 P. 961	Example of remand for entry of findings.	Cited among cases demonstrating the court's remedial practice.
State ex rel. Helwig v. Superior Court, 176 Wn. 478, 29 P.2d 930	Included among cases where remand for findings was appropriate.	Used to support remand practice.
Kietz v. Gold Point Mines, 198 Wn. 112, 87 P.2d 277	Cited as another instance where reversal and remand for findings were applied.	Included in the list of cases where that remedy was used.
Buob v. Feenaughty Machinery Co., 199 Wn. 256, 90 P.2d 1024	Another supporting case for the remand-with-instructions remedy.	Included among precedents applying that remedy.
Cole v. Osborne, 21 Wn.2d 577, 152 P.2d 152	Another case in the group showing remand for findings.	Relied on in demonstrating established appellate practice.
Svarz v. Dunlap, 149 Wn. 663, 271 P. 893	Explains that if the trial judge who entered inadequate findings is no longer on the bench, the only recourse is a new trial.	Applied to note the limited situation where a new trial (rather than remand to the trial judge) is necessary.

Court's Reasoning and Analysis

The court examined the findings entered by the trial court and determined they were inadequate to support the judgment for defendants. The court identified that one of the items labeled "finding of fact" (No. 5) was merely a resume of plaintiffs' testimony and not a finding vouchsafed by the trial court. The appellate court enumerated specific material issues as to which no ultimate findings existed: whether the appearance of the property amounted to a representation that the triangular area was included; whether the real-estate agents or defendants pointed out the true boundary before the sale; whether plaintiffs were deceived or defendants consummated the sale knowing of plaintiffs' belief; whether plaintiffs had knowledge of the true boundary when they obtained mortgage, paid the balance, and accepted deed; and whether defendants agreed to grant an easement or otherwise protect plaintiffs' use after the controversy arose.

The court invoked Rule of the Superior Court 17 (and the long-standing statutory rule, RCW 4.44.050) requiring that trial courts make findings of fact in equity cases and in law cases tried without a jury. The court explained that this requirement applies not only to judgments for plaintiffs but also to judgments for defendants when there has been a complete trial on the merits. The opinion reviewed prior Washington authorities establishing the rule and addressed contrary decisions (Lamar and Cochran), explaining why they were not controlling (Lamar effectively overruled by Boe and Cochran decided prior to later contrary decisions).

The court noted the limited scope of the findings requirement — trial courts need not make findings on every item of evidence — but emphasized that ultimate findings as to all material issues are necessary to enable appellate review. Because here there was no oral or memorandum opinion and the conclusions of law were a single sentence merely declaring respondents entitled to judgment, the appellate court could not discern the theory on which the trial court rested its decision (e.g., failure to prove misrepresentation versus waiver by plaintiffs). The lack of adequate findings deprived appellants of the opportunity to challenge factual determinations and prevented the appellate court from considering the legal questions without speculation as to the trial court's theory.

The court surveyed remedial options used in prior cases where findings were inadequate (reverse and remand for new trial; remand without reversal to supply missing single findings; and most commonly reverse and remand with directions that the trial judge make and enter necessary findings and conclusions of law). The court explained that remanding to the trial judge to supply findings is generally preferred (unless the judge is no longer available), and followed that precedent here.

Holding and Implications

Holding: The judgment for defendants is set aside and the cause is remanded to the trial court with directions to the judge who tried the action to make and enter findings of fact concerning the material issues (as identified in the opinion), together with appropriate conclusions of law, to be followed by the entry of judgment, from which either party may appeal. Costs on this appeal shall abide the result of the action. In short: REVERSED AND REMANDED WITH DIRECTIONS TO MAKE FINDINGS AND CONCLUSIONS.

Implications: The direct effect is that the trial court must supply adequate ultimate findings of fact and appropriate conclusions of law before a final judgment may be entered on remand; no determination on the merits (e.g., whether misrepresentation occurred or whether plaintiffs waived rights) was made by the appellate court. The opinion reiterates and enforces the rule that findings of fact are required where a full trial on the merits has been held and a judgment for the defendant is entered, thereby ensuring an adequate record for appellate review. The court did not purport to decide the substantive dispute over the triangular area; it instructed the trial judge to clarify factual findings and legal conclusions so the merits can be properly reviewed on further proceedings.

Note on dissent: Justice Olson (joined by Mallery, Schwellenbach, and Donworth) dissented, stating that because findings on the basic issues were nonexistent, the appellate court should affirm the judgment (i.e., the dissenting view was that the record before the court was insufficient to sustain appellants' requested relief and thus the appeal must fail).

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ROBERT A. BOWMAN et al., Appellants, v. W.E. WEBSTER et al., Respondents. Reported in 253 P.2d 934.

TRIAL — TRIAL BY COURT — FINDINGS OF FACT — NECESSITY. Under Rule of Superior Court 17, the trial court shall make findings of fact in all equity cases and in all law cases tried before the court without a jury; and this rule applies not only in the case of a judgment for the plaintiff, but also where the judgment is for the defendant in those cases where there has baen a complete trial on the merits.

SAME. The trial court is not required to make findings in regard to every item of evidence introduced in a case; however, it is necestary for it to make the ultimate findings of fact concerning all of the material issues.

APPEAL AND ERROR — DISPOSITION OF CAUSE — REVERSAL — REMAND WITH DIRECTIONS TO MAKE FINDINGS AND CONCLUSIONS. Where, in an action for specific performance, there are no findings of fact on the basic issues, and there is no oral or memorandum opinion, the judgment for the defendants will be set aside and the cause remanded with directions to the trial judge to make and enter findings of fact concerning the material issues, with appropriate conclusions of law, to be followed by the entry of judgment.

See 3 Am. Jur. 660.

OLSON, MALLERY, SCHWELLENBACH, and DONWORTH, JJ., dissent.

HAMLEY, J.

In this action for specific performance, the vendees of residence property in Seattle ask that the vendors be required to deed to them a certain triangular area adjacent to the land described in the contract and deed. The complaint in effect, though not specifically, also asks for reformation of the contract to include a description of that triangular area. Plaintiffs ask, in the alternative, that they be awarded damages in the sum of four thousand dollars.

It is alleged in the complaint that defendants were the owners of certain lots numbered 21, 22, and 23; that lot 21, which adjoined lot 22 on the west, was unimproved; that lot 22 was occupied by a house; that lawn and flowers on the west side of the house adjacent to lot 21 extended to a certain bulkhead and formed a triangular area; that defendants listed lot 22 for sale with a real-estate agent; that this agent and his associate showed the lot to plaintiffs as prospective purchasers; that it appeared to plaintiffs and was represented to them by the real-estate agents that the triangular area referred to was a part of lot 22 and included within the tract offered for sale; that plaintiffs made known to defendant W.E. Webster that they were pleased with the lawn and flowers, and asked about the bulkhead; and that Webster remained silent as to the true boundary of lot 22 and allowed plaintiffs to buy the house and lot, knowing that plaintiffs believed that the lawn and flowers were on lot 22.

It is further alleged in the complaint that plaintiffs bought lot 22 believing that it included the area in question, paying $14,500; that defendants have now begun the construction of a house on lot 21, and have advised plaintiffs that the triangular area is part of lot 21; that plaintiffs have since had a survey made which reveals that the triangular tract is on lot 21; that defendants have threatened to tear down the bulkhead and tear out the lawn, or put up a fence along the true boundary of lots 21 and 22; and that unless defendants are required to deed the area in question to plaintiffs, the latter will be irreparably damaged.

In their answer, defendants deny that the triangular area of lawn and flower beds gave the appearance of being part of the tract on which the house was located, or that any representation to this effect was made by the real-estate agent; admit that plaintiffs were on the property on an occasion when defendant Webster was present, and that plaintiffs then expressed satisfaction and pleasure with the house and yard, but allege that plaintiffs were then advised as to the true boundaries of lot 22; deny that defendants allowed plaintiffs to buy the house and lot knowing that plaintiffs believed that the lawn and flowers were on lot 22; admit that they have begun the construction of a house on lot 21 and intend to change the bulkhead and landscaping, but deny that it will cause irreparable damage to plaintiffs.

The cause came to trial on these pleadings before the court without a jury. The testimony was in dispute on the principal issues raised by the pleadings. An additional issue interjected during the trial was whether, by obtaining a mortgage on lot 22, paying off the purchase price in full, and accepting a deed which describes only lot 22, after knowing that a question had been raised concerning the triangular plot, plaintiffs had waived their right to reformation and specific performance or, in the alternative, damages. In connection with this issue, a question of fact was presented, on which the testimony was conflicting, as to whether after dissatisfaction concerning the boundary line arose, defendants agreed to give plaintiffs an easement, or in some other way protect plaintiffs' right to use that area for lawn and flower beds.

Findings of fact and conclusions of law were thereafter entered, on the basis of which the trial court granted judgment for defendants. Plaintiffs appeal.

The first assignment of error is that the trial court erred in not granting judgment for appellants. Neither this nor any other assignment (except one which must be disregarded for reasons hereafter noted) questions any individual finding of fact. Therefore the purport of this first assignment of error is that, on the findings of fact entered, appellants are entitled to judgment.

In support of this contention, appellants first call attention to a portion of finding of fact No. 5. This finding of fact, with the portion relied upon by appellants shown in italics, reads as follows:

"V. That according to the testimony submitted by plaintiffs neither of the defendants nor the realtor ever indicated or pointed out the true westerly boundary of Lot 22 prior to execution of the Real Estate Contract for purchase of the listed property on June 3, 1950, and that no request for such delineation of the boundary was made; that plaintiffs took it for granted that the westerly boundary of the property being purchased was along the line of the westerly side of the triangle A-B-C shown on Exhibit 1; that because of the cultivated appearance of the property plaintiffs were entitled to assume that the cultivated area in the triangle was a part of the listed property and that the westerly boundary thereof was the westerly boundary of the listed property, and that under the circumstances the defendants were under the obligation of indicating to plaintiffs the true westerly boundary of the listed property."

Appellants regard the italicized words as a finding of fact to the effect that, under the circumstances, respondents were under the obligation of indicating to appellants the true westerly boundary. They apparently also rely upon the fact that there is no finding to the effect that respondents fulfilled that obligation. Arguing that, under such findings, appellants would be entitled to a judgment unless appellants must be held to have waived their rights, appellants assume that the trial court must have held that appellants had waived such rights. Accordingly, appellants argue, under another assignment of error, that the trial court erred in holding that these rights had been waived.

As a matter of fact, there is neither a finding nor conclusion of law to the effect that appellants had waived any rights. Hence, without regard to the evidence or applicable law on the waiver question, appellants would indeed be correct in arguing that the findings of fact require a judgment in their favor — were it not for one circumstance. That circumstance is that "finding of fact" No. 5, on which they rely, is not a finding of fact at all. The introductory words indicate, as respondents here contend, that No. 5 is merely a resume of the testimony submitted by appellants, unvouched for by the trial court.

Accordingly, it cannot be held that the findings of fact, in their present form, call for entry of judgment for appellants. Appellants' only assignment challenging a particular finding of fact involves this same No. 5 and, for the reasons indicated, must therefore be disregarded.

A further question which is presented by the first assignment of error is whether the findings of fact are adequate to support the judgment which has been entered for respondents.

There are findings of fact concerning many of the details of the transaction, and "findings" as to what appellants claimed and what the testimony submitted by appellants tended to show. There is, however, no finding that the appearance of the property did or did not amount to a representation that the triangular area was included within the tract to be sold; no finding that the real-estate agents or respondents did or did not point out the true boundary line prior to sale; no finding as to whether appellants were or were not deceived by representations, if any, as to the boundary line; no finding as to whether or not respondent consummated the sale knowing that appellants believed they were buying the triangular area; no finding as to whether or not appellants had knowledge of the true boundary line at the time they obtained the mortgage, paid the balance on the purchase price, and accepted the deed to lot 22; and no finding as to whether, after the controversy over the boundary arose, respondents agreed to grant appellants an easement or in some other way protect the latters' right to use the triangular area.

[1] Rule of the Superior Court 17, 34A Wn.2d 118, provides that the trial court shall make findings of fact in all equity cases, and in all law cases tried before the court without a jury. With respect to law cases, this rule of court restates a statutory rule which has stood since 1854. RCW 4.44.050 (Rem. Rev. Stat., § 367).

This rule applies not only in the case of a judgment for the plaintiff, but also where the judgment is for the defendant, in those cases where there has been a complete trial on the merits. Slayton v. Felt, 40 Wn. 1, 82 P. 173; Western Dry Goods Co. v. Hamilton, 86 Wn. 478, 150 P. 1171; Boe v. Hodgson Graham Co., 97 Wn. 444, 166 P. 779; State ex rel. Eilers Music House v. French, 100 Wn. 552, 171 P. 527; Balzer v. Aukamp, 166 Wn. 268, 6 P.2d 614 (setoff); Hay v. Chehalis Mill Co., 172 Wn. 102, 19 P.2d 397; Cleator v. Daniels, 24 Wn.2d 542, 166 P.2d 461; Tobacco v. Rubatino, 35 Wn.2d 398, 212 P.2d 1019. See, also, Mertens v. Mertens, 38 Wn.2d 55, 227 P.2d 724.

There are two decisions to the contrary on this point. Lamar v. Anderson, 71 Wn. 314, 128 P. 672, and Cochran v. Nelson, 26 Wn.2d 82, 173 P.2d 769. The Cochran case cites the Lamar case and Wise v. Vaughan, 160 Wn. 505, 295 P. 126. The Wise case did not involve a judgment entered after a complete trial, but rather a judgment entered at the conclusion of the plaintiff's case. The Lamar case was, in effect, overruled in Boe v. Hodgson Graham Co., supra. The Cochran case, while never expressly overruled, was decided prior to the Tobacco and Mertens cases, which reached the opposite conclusion. See, also, Kinney v. Sando, 28 Wn.2d 252, 182 P.2d 45, which recognizes, by implication, the rule that findings of fact are required where judgment for the defendant has been entered after a full trial. Accordingly, the Cochran case cannot now be regarded as authority to the contrary.

[2] This rule does not require the trial court to make findings in regard to every item of evidence introduced in a case. Harbican v. Chamberlin, 82 Wn. 556, 144 P. 717; Dillabough v. Okanogan County, 105 Wn. 609, 178 P. 802; Walters v. Munson, 176 Wn. 469, 30 P.2d 224; Shorrock v. Shorrock, 185 Wn. 623, 56 P.2d 674; Taylor v. Lubetich, 2 Wn.2d 6, 97 P.2d 142; Williamson v. United Brotherhood of Carpenters Joiners of America, 12 Wn.2d 171, 120 P.2d 833.

It is necessary under the rule, however, for the trial court to make the ultimate findings of fact concerning all of the material issues. Dillabough v. Okanogan County, supra; Kinnear v. Graham, 133 Wn. 132, 233 P. 304; Keller v. Waddington, 142 Wn. 474, 253 P. 646; Walters v. Munson, supra. In the Kinnear case, supra, we made this statement, referred to with approval in the recent case of Mertens v. Mertens, 38 Wn.2d 55, 227 P.2d 724:

"The purpose of findings is to enable this court to review the questions upon appeal, and when it clearly appears what questions were decided by the trial court, and the manner in which they were decided, we think that the requirements have been fully met." (p. 133.)

Where the findings of fact are incomplete or defective in some particular so that a doubt exists as to the theory on which the case was decided, we are sometimes able to overcome the difficulty by referring to the oral or memorandum decision of the trial court. Kinnear v. Graham, supra; Mertens v. Mertens, supra; Payne v. Vinecore, 40 Wn.2d 746, 246 P.2d 448. The conclusions of law occasionally can be made to serve a similar function.

Here, however, findings of fact on the basic issues are nonexistent. Moreover, there is no oral or memorandum opinion. The conclusions of law consist of one sentence, to the effect that respondents are entitled to judgment. We do not know whether the court found for respondents on the ground that appellants failed to prove that there was a misrepresentation upon which they relied, or on the ground that appellants waived their right to obtain reformation and specific performance, or damages, by reason of their conduct after learning of the true boundary. The result is that appellants have been deprived of an opportunity to challenge findings of fact, and any consideration by us of the legal questions involves speculation as to just what legal theory the trial court pursued.

When presented with such a situation in the past, we have followed one of three courses. The most extreme remedy we have invoked has been to reverse and remand for a new trial. Kennedy v. Derrickson, 5 Wn. 289, 31 P. 766; Jones v. Bard, 40 Wn.2d 877, 246 P.2d 831. The most lenient remedy, utilized where one finding of fact was incomplete, has been to remand (without reversal) giving the parties an opportunity to file additional arguments after the necessary finding has been supplied. Michaelson v. Hopkins, 37 Wn.2d 453, 224 P.2d 350.

The remedy most frequently applied has been to reverse and remand with instructions to the judge who tried the action to make and enter the necessary findings of fact and conclusions of law, to be followed by the entry of judgment from which either party may appeal. Colvin v. Clark, 83 Wn. 376, 145 P. 419; Western Dry Goods Co. v. Hamilton, supra; Boe v. Hodgson Graham Co., supra; Barto Co. v. Aylmore, 125 Wn. 394, 216 P. 857; State ex rel. Dunn v. Plese, 134 Wn. 443, 235 P. 961; Balzer v. Aukamp, supra; Hay v. Chehalis Mill Co., supra; State ex rel. Helwig v. Superior Court, 176 Wn. 478, 29 P.2d 930; Kietz v. Gold Point Mines, 198 Wn. 112, 87 P.2d 277; Buob v. Feenaughty Machinery Co., 199 Wn. 256, 90 P.2d 1024; Cole v. Osborne, 21 Wn.2d 577, 152 P.2d 152; Cleator v. Daniels, supra; Tobacco v. Rubatino, supra; Mertens v. Mertens, supra. A statement of the reasons why, in such a situation, it is preferable to afford this remedy rather than to require a new trial, is set out in Colvin v. Clark, supra. Of course, where the trial judge who entered inadequate findings is no longer on the trial bench, the only recourse is to grant a new trial. Svarz v. Dunlap, 149 Wn. 663, 271 P. 893.

Of the decisions last cited, the Western Dry Goods Co., Boe, Svarz, Hay, Cleator, Tobacco and Mertens cases involved, as in the instant case, an appeal from a judgment for the defendant. The Balzer case has similar significance, since it was with respect to an alleged set-off that the court failed to make findings.

Superior Court Rule 15, as amended on March 27, 1952 (34A Wn. 2d pocket part), provides that a judgment entered without findings of fact having been made is subject to a motion to vacate. This rule relates to a case where there is a complete absence of findings of fact. The rule therefore has no application here.

[3] Following the precedent supplied by the decisions last referred to, the judgment in the instant case is set aside and the cause is remanded, with directions to the judge who tried the action to make and enter findings of fact concerning the material issues, as noted above, with appropriate conclusions of law, to be followed by the entry of judgment, from which either party may appeal. Costs on this appeal shall abide the result of the action.

GRADY, C.J., HILL, FINLEY, and WEAVER, JJ., concur.

OLSON, J. (dissenting)

As the majority opinion states, findings of fact on the basic issues are nonexistent in this case.

We can only review the record which appellants bring to this court. If that record is insufficient to sustain the relief sought by the appeal, it would seem to follow that the appeal must fail.

MALLERY, SCHWELLENBACH, and DONWORTH, JJ., concur with OLSON, J.

BOWMAN v. WEBSTER