This is a reasonably interesting contract/equitable relief case; it also raises (actually, the Court of Appeals opinion raises, and we didn’t have a chance to complain about it then because it came out long before AAB was born) a practice question that we wish people would look at.

Queiroz contracted to buy land from Harvey but failed to deposit the earnest money by the contract deadline. Harvey’s agent called Queiroz’ agent a few times to ask about the earnest money and, on a Friday,  to cancel the contract because of it. Bright and early Monday morning, before he or the escrow agent had received the written cancellation notice required by the contract, Queiroz’ agent scrambled over to another branch of the escrow office and made the deposit using his own money. Queiroz then sued Harvey for specific performance. (Real estate agents are such good friends to lawyers; they’re forever doing fascinating things like calling a guy to chat about the cancellation notice he’s about to get.)

The trial court denied specific performance because of Queiroz’ agent’s shenanigans. Division One reversed, concluding that the agent’s acts would not prevent specific performance if the principal didn’t know about them.

The Supreme Court affirmed the trial court. It decided that since the principal is bound by the agent’s acts, if the agent’s hands aren’t clean then neither are the principal’s. The wording of the opinion suggests that there may be exceptions to this rule but it does not specify them.

Now for the practice question, revealed by quotations in Division One’s opinion from the trial court’s findings and conclusions: Doesn’t anyone know how to make findings of fact any more?

The findings contained things like this: “Mr. Harrison said no one called him . . .   Ms. Walters says she called and left messages several times.” Once upon a time, people knew that that is precisely the wrong way to do it.

A court makes findings of ultimate fact, not of evidentiary fact. The record contains the evidence; the findings contain the truth. The finding is not “Mr. X said the light was red but Mr. Y said it was green and on the whole I tend to believe Mr. Y”; the finding is “The light was green.”

And findings of fact belong in the Findings of Fact section; they shouldn’t be hiding among the Conclusions of Law. If you think, and if it is important to note separately, that a witness lied to you (as this trial court did), you list that as a fact rather than (as apparently happened in this case) save it for the middle of a conclusion of law.

It may be that, as often happens, the parties filed proposed findings and conclusions and the trial judge just tinkered a bit with the winner’s proposals. (Remember that under Rule 52 you have to ask for them before trial; most trial judges don’t want to bother with them and will eagerly use that excuse to avoid them.) And the opinion quotes only snatches of the findings and conclusions, which may not be representative of the rest (though, lets face it, they probably are). But everybody would be better off doing them the right way, since that’s easier than doing them the wrong way.