23 N.M. 659 | N.M. | 1918
OPINION OP THE COURT.
The appellee, IT. S. Crawford, brought an action in the district court for Curry county against A. L. Gurley and IT. E. Lindsey, appellants, to recover $250. From a judgment in that sum in favor of appellee the appellants have perfected this appeal.
The case was tried to the court without a jury. The appellee alleged and proved that he and the appellants entered into a written contract by the terms of which lie agreed to sell his entire broom com crop, consisting of three tons, to appellants for $100 per ton, the same to be delivered to appellants by W. J. Cain; that appellants paid $50 on account thereof, and, although three tons of said broom corn were delivered by appellee through said Cain to appellants and received by them, they have failed, neglected and refused to pay for the same. Appellants denied the delivery by Cain of the Crawford broom com, and sought to recover from appellee the $50 paid to him. The evidence on the part of appellants tended to show that they had advanced Cain a large sum of money on a contract entered into by them and Cain for the delivery and sale of his broom corn, and that he had delivered about fifteen tons under that contract, none of which was the property of the appellee. The trial court admitted testimony on the part of appellee tending to show that, at the time of the execution of the written contract between him and the appellants, the latter’s agent orally agreed that upon the delivery of the Crawford corn by Cain the appellants would deposit the purchase price, less the $50 theretofore paid on account, in a certain bank in Clovis to the credit of appellee, which they subsequently failed and neglected to do. In effect, the trial court found that payments made to Cain were on account of the .delivery of Cain’s broom corn to appellants and not on account of the delivery of the Crawford broom corn. It also found that three tons of the Crawford broom corn were delivered by Cain to appellants, and that knowledge thereof was brought home to appellants at the time the same was delivered. The court, in the course of its opinion, said:
“As to whether or not the agency of Cain to deliver would imply agency to collect, the court does not think is in the case; if so, his view is the agency was limited and not general under the contract.”
“The erroneous admission of testimony will afford no ground for reversal unless it appears that the court considered such testimony in deciding the case.”
For the reasons stated the judgment of the trial court will be affirmed; and it is so ordered.