This is an action of claim and delivery for a quantity of flour by the Wheatland Mill Company against William Pirrie.

Judgment was rendered for the defendant for the return *461 of the flour which the plaintiff had received, or the value thereof and interest. From that judgment, and an order refusing a new trial, the plaintiffs have appealed.

The defendant appeals from an order retaxing costs, by which the sum of one hundred dollars, claimed as percentage under section 6 of the act of the legislature to he found in the Statutes of 1865-66, at page 66, in relation to fees in the city and county of San Francisco, was struck from his memorandum of costs.

The appellant contends that the trial court committed error “in denying their request that it would pass upon certain propositions of law presented by plaintiff, and give the same as applicable to the case, and in refusing to pass upon said propositions and to rule that the same were correct and applicable to the case.”

The cause came on to be tried, the court sitting without a jury, on the twentieth day of March, 1888, and on that day, upon the evidence produced, was considered and heard by the court; and it was then submitted for decision on briefs to be filed by respective counsel, which was done. On the fourth day of May following, the court announced its decision orally for the defendant.

Upon the sixteenth day of the same month, before the written findings were filed, the propositions of law, which are nothing more than instructions to the court by the court, put in such a form that such tribunal could answer yes or no, and thus put itself on record as to its views of the proposition of law therein involved, were presented to the court, and it refused to consider them, making two indorsements thereon on the twenty-first day of May, 1888; one indorsement refusing to pass upon or give them as applicable to the case, the other treating them as proposed findings, and refusing the request to sign and settle the same, because the court had upon that day signed and filed findings of fact in accordance with its decision.

We fail to perceive any good ground upon which it *462 ought to be contended that the practice as here suggested should be held to prevail in any court.

If rulings are needed as to the admission or exclusion of evidence involving the determination of questions of law, or rulings upon a motion for a nonsuit, or upon any motion or matter which may arise during the progress of the trial, and which are authorized by law to be determined by the court when counsel on both sides may be present and can state their views, such rulings can be had before the cause is submitted to the court for final decision.

But upon what sound reason a court to whom a cause, upon the law and facts, after hearing, has been submitted for decision, and the trial has practically ended, can then be compelled to instruct itself as a jury, and at the same time prematurely commit itself as a court to propositions of law in advance of its decision which is made by its findings of fact and conclusions of law, we do not perceive. There is no statutory provision which prescribes any such course of action, and we can see nothing whatever to recommend it. None of the cases cited by appellant are, we think, in point.

If the propositions are to be considered as findings presented to the court, then it was a species of dictation to which the court was not compelled to submit. The question in all such cases is, whether the written findings made by the court are sufficient; and the presence or absence of a request to make findings is utterly immaterial. And there is nothing here to show that the findings made were insufficient. (Pereira v. Smith, 79 Cal. 233 .)

The further point is made that the findings of the court as to the ownership of the property for the possession of which the action was brought are not sustained by the evidence. We do not concur in this view of the matter, and think the evidence was sufficient.

It does not seem to be questioned by either party here, but that the statute under which this percentage may *463 be recovered is still in force, as decided in Whitaker v. Haynes, 49 Cal. 596 . That statute is, in effect, that “ the prevailing party shall be allowed five per cent on the amount recovered, etc., in litigated cases,” not to exceed one hundred dollars on any one judgment.

The test here is, What is the meaning to be given to the words “ amount recovered ” as to the judgment under consideration?

It is in the alternative, under section 667 of the Code of Civil Procedure, for the return of the property mentioned in the complaint, or in case a return thereof cannot be had, for the sum of $1,837.50 and interest, making in the aggregate $2,386.85, with interest on that amount at seven percent from rendition of judgment, and costs on which amount, to the extent of one hundred dollars, the percentage was claimed. The amount recovered is not the primary and absolute result of the judgment. It may never be recovered, because the whole property or a part thereof may be returned, in which event there would be a percentage given for an amount which was not recovered at all. And in this case it does not appear whether the property, or any part of it, would be returned or not.

Hence we do not think that the statute in question includes such a judgment as the one in hand. It follows that the judgment and order refusing a new trial, and the order retaxing costs, should be affirmed, and we so advise.

Temple, C., and Fitzgerald, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment and order refusing a new trial, and the order retaxing costs, are affirmed.