The opinion
TRAYNOR, J., Concurring and Dissenting.
I agree that the trial court erred in refusing to admit any evidence relating to the party wall and that the cause should therefore be remanded for a new trial on the issues raised by the counterclaim. On the basis of the provision in the lease that “Lessor shall not be relieved of its said maintenance obligations with respect to said party wall,” defendant offered to prove that “the lessor plaintiff both expressly and impliedly agreed to maintain and keep in repair this party wall so far as the lessee is concerned, in conjunction with its contractual liability with the contiguous owner under a party wall agreement.” The counterclaim quotes the paragraph of the lease stating the parties’ obligations with respect to the party wall, and alleges that the “plaintiff herein negligently and carelessly failed to maintain said party wall in a safe condition.” The words “negligently and carelessly” do not prevent defendant from proving a cause of action in contract (see L. B. Laboratories, Inc. v. Mitchell, ante, pp. 59, 60 [ 244 P.2d 385 ] ; George v. Bekins Van & Storage Co., 33 Cal.2d 834, 841 [ 205 P.2d 1037 ]), and since the alleged obligation was based on the written lease, section 337(1) appears to be the applicable statute of limitation. Accordingly, the trial court erred in rejecting the offer of proof.
On the other issues, I concur in the dissenting opinion of Mr. Justice Edmonds.
EDMONDS, J.
The counterclaim of Briggs does not charge Barker with any breach of contract to maintain a party wall. At most, the pleading states a cause of action in tort which would lie against either owner of the wall for per *667 mitting it to become a private nuisance. For that reason, section 337(1) of the Code of Civil Procedure relating to “ [a]n action upon any contract, obligation or liability founded upon an instrument in writing” is not the applicable statute of limitations.
The lease does not contain any obligation or promise, express or implied, whereby Barker promises Briggs that the wall will be kept in repair. It states that the demised premises are subject to a party wall agreement whereby Barker has certain maintenance obligations. What these obligations are, or with whom, is not specified. Presumably they are owed to the other owner of the party wall. The lease further provides that Briggs is not to be liable for these obligations except under certain circumstances which are alleged not to have occurred. Barker is to remain obligated under the party wall agreement. The most which can be construed from this provision is that Briggs, as lessee, is to be protected against an assumption of a covenant with some third party. The only promise is that Briggs will not be held liable for any obligations under this separate agreement.
The facts alleged in the counterclaim do not support a charge that Barker breached its obligation to Briggs to protect him from liability for the party wall agreement. There is no claim that the cause of action is based upon the party wall agreement, nor is it alleged that the agreement is in writing and that Briggs is a third-party beneficiary of it. (Cf. Division of Lab. Law Enforcement v. Dennis, 81 Cal.App.2d 306 [ 183 P.2d 932 ].)
Tagus Ranch Co. v. Hughes, 64 Cal.App.2d 128 [ 148 P.2d 79 ], is cited for the proposition “that all obligations and promises which the words of the writing necessarily import must be regarded as included in the terms of the writing, under section 337, Code of Civil Procedure.” Although the statement of the rule of that case is correct, it is not here applicable. In the Tagus Ranch case, the instrument read: “I . . . hereby confess and acknowledge that I have stolen and embezzled from you” a certain sum of money. The court, quite properly, construed this to imply, as a matter of law, a promise to repay the sum embezzled. According to the court, “The obligation to repay could be established by the use of these writings and there would be no need for evidence of facts and occurrences outside of those appearing on the face of the instruments. Under these circumstances we think *668 the writings in question are sufficient to bring the action within the provisions of the four-year statute above mentioned.” (P. 131.)
In support of this conclusion, the court relied upon O’Brien v. Kmg, 174 Cal. 769 [ 164 P. 631 ], which stated the rule as follows: “A cause of action is ‘founded upon an instrument of writing’ when the contract, obligation, or liability grows ‘out of written instruments not remotely or ultimately, but immediately.’ ” (P. 772.) The O’Brien case concerned an instrument reading: “Received from Miss Hannah O’Brien, . . . $450 . . . at 5 per cent interest.” The court said: “The reasonable—indeed, the only reasonable—meaning of these words is that the money was received as a loan at the specified interest rate. A loan being established by the writing, a promise to repay is implied by necessary inference of law and fact. Such promise is embodied in the language of the writing, although not expressed in the words ‘I promise to pay.’ ” (P. 773.) According to the court, “promises ‘merely implied by law’ from a situation evidenced by a writing, i.e., quasi contracts, are not within the statutory provision under discussion. The promise must be one arising directly from the writing itself, and included in its terms. But in determining whether the obligation is ‘supported by an express promise or stipulation in the written instrument,’ we must regard, as included in the terms of the writing, all obligations and promises which its words necessarily import.” (P. 774.)
In McCarthy v. Mt. Tecarte L. & W. Co., 111 Cal. 328 [ 43 P. 956 ], the plaintiff, director of the corporation, attempted to rely upon a resolution of the board of directors appointing him superintendent of the company. The resolution did not fix any compensation for the position, and plaintiff was entitled to none unless the circumstances raised an implied assumpsit. The court said: “But a cause of action is not upon a contract founded upon an instrument in writing, within the meaning of the code, merely because it is in some way remotely or indirectly connected with such an instrument, or because the instrument would be a link in the chain of evidence establishing the cause of action. In order to be founded upon an instrument in writing, the instrument must, itself, contain a contract to do the thing for the nonperformance of which the action is brought.” (P. 340.) Therefore, the court concluded, the plaintiff’s cause of action, not being based upon a written instrument, was barred by section 339(1). *669 It summarized the situation as follows; “Appellant could not have been precluded from showing affirmatively that no compensation was intended or expected, upon the ground that it would have been an attempt to contradict a written instrument. If respondent have any cause of action, it is upon an understanding of appellant and the expectation of respondent that he would be compensated, which may be implied, if the evidence be sufficient, from all of the circumstances of the case, and not upon any written instrument.” (P. 342.)
In the present ease, the lease provision that Barker will remain obligated upon the separate party wall agreement may be some evidence of its liability in tort for failure to maintain the wall. But it would not be precluded by the rule of integration from proving that it is not subject to such liability. From all that appears, its obligations under the agreement may have been no more than to paint or light the wall. The lease contains no promise that Barker will repair the wall, or so maintain it that it will not become a nuisance. If this is Barker’s obligation, it can be proved only by evidence of the agreement or other evidence outside the lease. The counterclaim is based upon Barker's negligence and carelessness in maintaining the wall, as a result of which it became a hazard. Barker’s liability, if any, for this condition does not arise “immediately” out of a written instrument. The lease does not contain a contract to keep the wall in repair, for nonperformance of which the action is brought. Therefore, the action is barred by section 339(1) of the Code of Civil Procedure which requires that an action “upon a contract, obligation or liability not founded upon an instrument in writing” must be commenced within two years.
As another ground for reversal of the judgment, it is held that Briggs stated a cause of action for declaratory relief and the trial court erred in deciding that he was not entitled to such a judgment. (Dabney v. Philleo, 38 Cal.2d 60, 70 [ 237 P.2d 648 ] ; Essick v. City of Los Angeles, 34 Cal.2d 614, 624 [ 213 P.2d 492 ].) However, whether, under all of the circumstances, a declaration of the rights of the parties is necessary or proper is a matter within the discretion of the trial court, and in the absence of a clear showing of abuse of that discretion, which does not appear here, its decision will not be disturbed upon appeal. (Code Civ. Proc. § 1061; Hanula v. Hacienda Homes, Inc., 34 Cal.2d 442, 448 [ 211 P.2d 302 , 19 A.L.R.2d 1268 ] ; California Physicians’ Service v. Gar *670 rison, 28 Cal.2d 790, 801 [ 172 P.2d 4 , 167 A.L.R. 306 ] ; Moss v. Moss, 20 Cal.2d 640, 643-644 [ 128 P.2d 526 , 141 A.L.R. 1422 ) ; Cutting v. Bryan, 206 Cal. 254, 257 [ 274 P. 326 ].)
Barker’s complaint and supplemental complaint alleged that Briggs was in default under the second paragraph of the lease by failure to furnish certified statements and pay the additional rental of 60 per cent of the gross income or receipts in excess of $25,000 derived in any manner, directly or indirectly, from the use or occupancy of the premises. The pleader claimed the right, by reason of these defaults, to reenter and repossess the premises without terminating the lease. According to the supplemental complaint, the lease does not authorize any allocation or proration of receipts between the demised premises and the other parking lots not belonging to Barker.
By amended answer to the complaint and answer to the supplemental complaint, Briggs admitted his failure to file a certified statement within the proper time in 1948, but claimed that Barker had waived the provisions of the lease in this respect by accepting, in prior years, unverified statements later than the time specified. He denied that the 1949 statement did not comply with the lease. Briggs also denied that he had failed to pay the additional rental provided in the lease and was in default. Therefore, he said, Barker is not entitled to reenter and repossess the premises without terminating the lease. According to Briggs, “The dispute, if any, over the amount of rent owed . . . arises from the manner in which defendant has apportioned gross receipts from the operation of all of defendant’s parking lots to the use or occupancy of the demised premises. . . . Plaintiff is not entitled to receipts from the parking of cars on the adjoining lots not owned by plaintiff. ’ ’
As stated by Briggs in his cross-complaint, it was his custom to operate the demised premises and two other lots as a single unit from time to time and he alleged that he maintained records to show “the gross profits fairly attributable to the use and occupancy of the demised premises. ’ ’ He claimed the right under the lease “to allocate gross income or receipts to the parking lot on which a particular automobile is parked when overflow cars enter the demised premises but are parked on adjoining lots.’’ He also pleaded that “his method of allocating gross income or receipts as between the demised premises and other parking lots operated as a unit with the demised premises constitutes a fair and reasonable method of allocation and that cross-defendant received its just, fair and pro *671 portional share of the gross income or receipts attributable to the use or occupancy of the demised premises.” According to Briggs, unless he secures a declaration of his rights Barker “will endeavor to terminate and cancel the rights of cross-complainant in and to the lease. . . and will forfeit and use the deposit of the cross-complainant put up on said lease.”
The basic issues joined by the pleadings were simply whether Briggs was in default under the terms of the lease and, if so, whether Barker was entitled to repossession without terminating the lease. Insofar as the alleged default in payment of additional rentals is concerned, Briggs asserted that he was entitled to allocate receipts between the several lots. No new issue was raised by the cross-complaint for declaratory relief.
“The purpose of section 1060 et seq. of the Code of Civil Procedure, providing for actions for declaratory relief, is to provide a ready and speedy remedy in cases of actual controversy relating to the legal rights and duties of the respective parties. By section 1061 the court is permitted to refuse to exercise the power in any case where its declaration or determination is not necessary under the circumstances. This is such a case. All the issues raised in the cross-complaint can be readily determined in the trial of the special defenses raised in the answer and, because this affirmatively appears upon the face of the pleading, the trial court properly refused to exercise the power granted by these sections of the code.” (Welfare Inv. Co. v. Stowell, 132 Cal.App. 275, 278 [ 22 P.2d 529 ] ; Sunset Scavenger Corp. v. Oddou, 11 Cal.App.2d 92, 96 [ 53 P.2d 188 ].)
The trial court found that in 1946 Briggs did not furnish a report prepared and certified as required by the lease and that the reports which he supplied in 1947, 1948 and 1949 were neither certified nor presented within the time provided by the lease. With regard to these reports, it said that, “It is not true that these reports correctly reflected the gross income attributable to the use and occupation by the defendant of the leased premises. ” As a portion of this finding concerning reports, the court declared; “It is not true that the plaintiff, . . . waived these defaults, or led the defendant to believe that strict compliance in the future with the terms of the Lease would not be required.”
The court then found that a certified report was furnished within the proper time for the year 1949, but that it showed a gross revenue attributable to the leased premises of $35,-485.60, rather than the sum of $31,179.17 which Briggs reported *672 to Barker. This report, the court said, did not correctly reflect the gross income attributable to the use of the premises. The court also found that the payment of $3,707.50 which Briggs tendered after commencement of the action, should have been in the amount of $6,291.36. From these findings, the court concluded that Barker was entitled to a judgment for immediate possession of the property and that Briggs was not entitled to a declaratory judgment.
Because of asserted deficiencies in the findings, it is now held that the judgment must be reversed. However, even if we assume that the findings are insufficient, this court “may make findings of fact contrary to, or in addition to, those made by the trial court.” (Code Civ. Proc. § 956a.) In Tupman v. Haberkern, 208 Cal. 256, 266 [ 280 P. 970 ], the court explained the purpose of section 956a to be that, ‘ ‘whenever possible, and the interests of justice would seem to require, the reviewing court should have the power to make new findings contrary to or in addition to those made by the trial court, either on the record presented or on new evidence to be taken under the direction of the court, all with references to material issues framed by the pleadings, to the end that the judgment or order appealed from may be affirmed and further litigation terminated.” The constitutional and statutory provisions which empower this court to affirm, modify or direct the entry of a final judgment are to be liberally construed toward the end that a cause may be disposed of on a single appeal. (Cal. Const., art. VI, § 4%; Code Civ. Proc. §§ 53, 956a; American Enterprise, Inc. v. Van Winkle, ante, pp. 210, 219 [ 246 P.2d 935 ] ; Tupman v. Haberkern, supra; Gudger v. Manton, 21 Cal.2d 537, 547 [ 134 P.2d 217 ] ; Culjak v. Better Built Homes, 58 Cal.App.2d 720, 725 [ 137 P.2d 492 ].)
Where the error in an action for declaratory relief consists of entering a judgment of dismissal rather than decreeing expressly that the complainant is not entitled to declarations in his favor (as is implied by the judgment of dismissal), the court may modify the judgment by inserting an express declaration of the rights of the parties. (Essick v. City of Los Angeles, 34 Cal.2d 614, 624-625 [ 213 P.2d 492 ].) In the Essick case the judgment was affirmed, as modified, although the trial court erroneously failed to declare the rights of the parties. Because the evidence contained in the record was sufficient to empower the court to modify the judgment, the *673 error in entering a judgment of dismissal was not prejudicial. Under the circumstances, no reversal was required.
The present decision implicitly approves the trial court’s findings, as far as they go, with the exception of the specification of the amount of additional rental which Briggs should have paid, a determination which is unnecessary to the judgment. These findings are sufficient to sustain the judgment restoring Barker to possession and allowing attorney’s fees and costs. Even if additional findings were necessary, the record would enable this court to supply them and modify the judgment. No extrinsic evidence has been offered to aid in the interpretation of the terms of the lease, nor is it contended that any such evidence is required. The document is in evidence and may as readily be interpreted by this court as by the trial court.
The majority have gone halfway in supplying the findings which they say are missing by determining that, if Briggs has breached the terms of the lease, Barker is entitled to possession without terminating the lease and may retain the security deposit in accordance with its terms. This conclusion is based upon the correct interpretation of the lease provisions. However, no issue was raised by the cross-complaint concerning either of these points and there was no necessity to grant declaratory relief for the sole purpose of deciding them.
“As to the principles governing appellate courts in considering the adequacy of findings to dispose of issues and support a judgment it is a general rule that ‘Even though a finding might have been more clearly phrased, it is sufficient if its language is clear enough to indicate what the court intended; and if there are findings sufficient to support the judgment, they are not vitiated by the unintelligibility of others. Any uncertainty in the findings will be construed so as to support the judgment rather than to defeat it.’ ... It is also to be noted that while full findings are required upon all material issues a judgment will not be set aside on appeal because of a failure to make an express finding upon an issue if a finding thereon, consistent with the judgment, results by necessary implication from the express findings which are made.” (Richter v. Walker, 36 Cal.2d 634, 639-640 [ 226 P.2d 593 ].)
Also, “ [i]t is well settled, in spite of the fact that section 633 of the Code of Civil Procedure provides that facts and conclusions must be separately stated, that a finding may be *674 regarded as one of fact, although mistakenly placed among the conclusions of law.” (Linberg v. Stanto, 211 Cal. 771, 776 [ 297 P. 9 , 75 A.L.R. 555 ].) “It is also the rule that findings are sufficient if they can be made certain by reference to the record” (Ethel D. Co. v. Industrial Acc. Com., 219 Cal. 699, 708 [ 28 P.2d 919 ]) or the pleadings. (Kennedy & Shaw Lbr. Co. v. S. S. Const. Co., 123 Cal. 584, 585-586 [ 56 P. 457 ].)
Although the findings in this case are far from ideal, and should have been drawn with more certainty, the weakness in them is not fatally defective. (Richter v. Walker, supra.) Upon the ultimate fact of whether Briggs was in default under the provisions of the lease, the court found that he did not report the proper gross receipts attributable to the use and occupation of the leased premises. Prom a review of the record, it is obvious that the finding also was intended to encompass a failure to pay the correct amount of additional rental.
The majority object to the findings of an incorrect report of gross receipts upon the ground that they could “refer either to the overflow and night parking receipts or to the gross receipts on cars actually parked on the Spring Street lot.” However, “ [t]he court’s finding was upon the ultimate fact in issue and was therefore sufficient.” (Estate of Janes, 18 Cal.2d 512, 514 [ 116 P.2d 438 ].) It was not necessary for the court also to find upon the probative facts from which it deduced the ultimate fact of failure to comply with the provisions of the lease. (Klein v. Milne, 198 Cal. 71, 75 [ 243 P. 420 ].)
Ample support for the finding that Briggs failed properly to account for gross receipts is provided by the undisputed evidence that, for more than a year, no records were kept of gross receipts for night parking. This breach of the lease is sufficient of itself to give Barker the right to possession. In addition, there is some indication in the record that the trial court intended to construe the lease contrary to Briggs’ claim of a right to allocate receipts to various lots. However, the finding being supported by other sufficient evidence, it is unnecessary for this court to consider that question of interpretation. “It is, of course, immaterial that the theory upon which the judgment may be affirmed is not identical with that relied upon by plaintiffs or by the trial court, since plaintiffs are required only to plead and prove facts sufficient to justify relief, and the trial court’s judgment must be affirmed if the findings, supported by the evidence, are sufficient *675 to warrant the relief granted on any legal theory.” (Sears v. Rule, 27 Cal.2d 131, 140-141 [ 163 P.2d 443 ].)
Among the findings of fact there is none directed specifically to the question of whether Barker has the right to possession without terminating the lease. However, there is a so-called conclusion of law providing-. “That plaintiff is entitled . . . to be placed in the immediate possession of said real property.” This is, in effect, a finding upon an ultimate fact in issue, and may be treated as such. (Linberg v. Stanto, supra.) Even if it were not to be considered as a finding of fact, a determination that Barker is entitled to immediate possession of the property results by necessary implication from the express finding.that Briggs is in default under the lease. It is obvious from the lease, as construed by the majority, that, if Briggs is in default, Barker is entitled to possession without terminating the lease. The finding must be interpreted to include the right to continue the obligations of the lease. The only issue raised by the pleadings was whether the lease had been breached so that Barker had the right to possession without terminating it. There was no issue as to whether he had the right to possession, but not the right to continue the lease in effect.
Construing the findings so as to support the judgment rather than defeat it (Richter v. Walker, supra,) I conclude that they are sufficient to determine the cause without the necessity of making additional findings. Those which were made, supported by sufficient evidence, eliminated any necessity for determining whether Briggs’ interpretation of the lease in regard to allocation of rentals was correct. The court having found that Briggs was no longer entitled to possession of the property, his interpretation of the additional rental provision became an immaterial issue and the failure to find thereon does not constitute prejudicial error. (Merrill v. Gordon & Harrison, 208 Cal. 1, 6 [ 279 P. 996 ]; Woodhead v. Wilkinson, 181 Cal. 599, 602 [ 185 P. 851 , 10 A.L.R 291].)
For these reasons, I would affirm the judgment.
Respondent’s petition for a rehearing was denied November 3, 1952. Edmonds, J., and Traynor, J., were of the opinion that the petition should be granted. '