dissenting.

I respectfully dissent from the order remanding this case for further trial. The excellent analysis by the majority misses one salient factor. Double recovery as a defense is an affirmative defense. The burden of proof is on the defendant. Fed.R.Civ.P. Rule 8(c). The defense is akin to the defenses of “payment” and “release” specified in the rule, and, if improperly so characterized, is certainly “other matter constituting an avoidance or affirmative defense.” Cf. Duarte v. Bank of Hawaii, 287 F.2d 51 (9th Cir. 1961).

Univac failed to establish this defense by a preponderance of the evidence. The opinion, which incorporated the findings, of the trial judge, carefully reviewed the evidence relating to the Convoy-WOFAC settlement. The judge found that Convoy did not intend to release its rights against Univac, and also found that Convoy had not, by the settlement, received full compensation for its out-of-pocket expenses. The trial judge then proceeded to detail specific instances of damage suffered by Convoy as a consequence of the actionable conduct of Univac, independently of any wrongdoing by WO-FAC. These damages aggregated $216,-398.61 and judgment was entered for that amount. Inasmuch as defendant failed to sustain its burden the judgment should be affirmed without qualification.

There is another perspective from which this problem may be viewed. It is true that the trial court did not expressly state that Convoy’s total provable damages were a certain sum which was more than $216,-398.61 in excess of the settlement of $354,-500, but such a finding is a necessary inference from the facts which the court did expressly find. The rule in this circuit is that such a finding will be inferred to sustain the judgment. Wells Benz, Inc. v. United States, 333 F.2d 89 (9th Cir. 1964). *

“True, they do not state that any party had breached the contracts, and that issue was basic, both to Mercury claims and Wells and Benz’ counterclaims: but the lack of an express statement does not necessarily constitute a vital omission, for the rule in this court, as well as in other jurisdictions, has long been that ‘ * * * whenever, from facts found, other facts may be inferred which will support the judgment, such inferences will be deemed to have been drawn. The findings of fact by a trial court must receive such a construction as will uphold, rather than defeat, its judgment.’ Clyde Equipment Co. v. Fiorito, 16 F.2d 106, 107 (9th Cir. 1926); Carr v. Yokohama Specie Bank, Inc., 200 F.2d 251, 255 (9th Cir. 1952; 5 Am.Jur.2d, Appeal and Error, § 844 at p. 288 (1962). And in the cases at bar, the answer to the question who was at fault can fairly be determined from the facts the court did declare.”