Stewart

The appeal in this case is from the judgment and from an order denying a new trial. The only error urged is that in finding of fact IV, which reads as follows: “That the said plaintiff,.has prior to the beginning of said action demanded of and from said defendants and each of them his proportion of said five thousand dollars ($5,000), to wit, one thousand six hundred sixty-six and two-thirds ($1,666-2-3) as a commission for making said sale but that said defendants and each of them have failed, neglected and refused and still fails, neglects and refuses to pay said plaintiff the said sum of one thousand six hundred sixty-six and two-thirds dollars ($1,666 2-3) or any part thereof and there now remains due and owing from the said defendants to the said plaintiff the sum of one thousand six hundred and sixty-six and two-thirds dollars ($1,666 2-3) over and above all counter charges and offsets,’’ the words “due and owing” state a conclusion of law and not a finding of fact. That the finding as so worded does not dispose of the issue of nonpayment essential to a judgment, and therefore the judgment lacks this finding of fact necessary to its support.

It is a matter of some surprise…