15 N.M. 323 | N.M. | 1910
OPINION OP THE COURT.
¡secure in the line of his employment, that is, even if the property it placed in the agent’s hands to sell at •a certain price, and he receives a greater price, he is bound to account for it. Collins, et al. v. McClurg, 29 Pac. 299; Bassett v. Robers, et al., 43 N. E. 180; Hellberg v. Nichol, et al, 37 N. E. 63.
3. The appellants contend that the appellee is not entitled to recover the sum, for which he received judgment, because, it is shown in the evidence, that they sold the land on time; that at the date this case was tried there remained due and unpaid on their sale to Swinney the sum of $4,000.00; that the appellee had received the sum of $3,000 in cash, being more than they had received in cash, and that if he did not elect to rescind the contract, he necessarily elected to ratify it and should abide by it, and that therefore they not having received cash, but notes, it was the duty, of the appellee to prove the value of those notes, and his recovery is limited to that value, and that the court should have so instructed.
4. It is complained also that there is a variance between the allegations and proof, for the reason, that the appellee alleged that the appellants received $6,84Q.OO for the land, and converted the difference between that sum and $5,400.00 to their own use, and benefit, when by the evidence it was shown that they did not receive money, but received unsecured promissory notes, and counsel for appellants in their brief argue, that the law does not permit a party to allege conversion of money, and prove the conversion of promissory notes, or anything else except money. It was proven by several witnesses, both for the appellee and the appellants, that the latter sold the land for the sum of $6,840:00 and of this sum they received $200.00 in cash and the balance in unsecured promissory notes. To this evidence the appellants made no objection, neither did they, after the trial, demur to the same, it was in evidence that appellants still owned the notes which were at the time of the trial, deposited in a bank with the contract of sale, that they had made with Swinney. The appellee, it is true, alleged tire conversion of money and the evidence showed the conversion of unconditional contracts to pay money, which contracts were held by his agents.
The trial court’s attention was first called to the alleged variance by a motion for a new trial, at which time the objection was not available, because it should have been made before the case went to the jury.
The appellants sold the land for money and received promissory notes in lieu thereof. If they did not account to the appellee for the notes they should account for the equivalent of the notes, and proof that they received the notes as money will sustain the action. Gordon v. Camp, 2 Fla. 422; Hill v. Kennedy, 32 Ala. 523; Bank of Missouri v. Benoist, 10 Mo. 520.
The allegation of money had and received is supported by evidence that the appellants) received something belonging to the appellee, which under the circumstances ought, as between the parties, be regarded as money. Mathewson v. Eureka Powder Works Co., 44 N. H. 289.
5. Error is assigned to the action of the court in “overruling appellants’ motion for a new trial because appellee neither alleged nor proved that he would have accepted M. C. Swinney as his purchaser for his said land, upon the terms and conditions which said M. C. Swinney was able and willing to buy his said land.”
6. Appellants insist that the judgment rendered is erroneous because it allows the appellee to ratify every part and element of both contracts, made with reference to the sale of his land, which are to Ms advantage, and allows him to rescind, withoyit making restitution, every part and element in both said contracts, which are to his disadvantage, and in support of this position cite cases holding that when a party elects to rescind a contract or ratify it, he must do so as a whole, and further argue that as appellee rescinded the contract between him and the appellants he should have placed them in staLu quo by a tender of the $3,000.00, and if he ratified the-contract with Swinney he must accept all of its terms.
These questions were not raised before or at the trial, either by pleading or exceptions to the evidence, nor by asking an appropriate instruction calling the attention of the court and jury to them, nor as a specific ground for a new trial, nor do the assignments or the argument in the brief hint, at any mention of these questions antedating the filing of the assignments of error themselves.
The judgment is assigned as error.
“It is fundamental that when the judgment of a court is challenged in error, its rulings alone are open to consideration. Of course if the trial court had no jurisdiction, that is a matter which is alwaj's open, and the attention of the court of last resort may be called thereto in the first instance.” Montana Railway Company v. Warren, 137 U. S. 348.
The judgment of the court below is affirmed.