27 N.M. 164 | N.M. | 1921
OPINION OF THE COURT.
Appellee instituted this suit to recover damages in the sum of $1,627 alleged to have been sustained by him as the result of appellant’s breach of a certain contract entered into between them, together with a subsequent modification thereof, whereby appellant agreed to sell to appellee certain lots situated in Obar, N. M., with a certain building thereon, and a stock of merchandise. As a part of the purchase price therefor appellee executed 28 notes in the sum of $50 each, payable one each month, which were to be placed in escrow in the First National Bank of Tucumcari, with the provision that appellant’s deed and abstract showing clear title should' also be placed in said bank, and should be delivered to appellee when he had paid off all of such notes. Later, and while this contract was in process of being carried out, and after appellee had paid 10 of these notes, he made a contract with one Roy Johnson whereby he agreed to sell said premises to Johnson at a profit of $200. After this contract was made, appellee for 'the first time examined the abstract which appellant had furnished, and then objected to the title, by which objection he asserted there existed an unreleased mortgage deed covering said premises executed by New Mexico Land & Immigration Company to' the Bank of Topeka, securing a note of $8,700. Immediately after this objection was made, appellant, appellee Johnson, and their respective attorneys had a conference at which this objection to the title was discussed, and it was there agreed that the appellant would obtain a release of such mortgage deed, and in consideration thereof appellee would pay to him $823 in cash in lieu of the 18 notes of $50'each which then remained unpaid, and in addition thereto Johnson agreed to pay him $25 in cash, whereupon appellee executed an order to the First National Bank of Tucumcari directing it to pay to appellant $823 when the abstract was approved by Johnson’s attorney. This order was delivered to and kept by said attorney for about one month, and was then returned to appellee by mail. Up to the time this conference was held and this agreement had appellee had promptly paid the notes due appellant as they matured, but he paid none of the remaining notes.
About two months after the supplemental agreement was had with reference to the release of the mortgage deed, appellant took possession of the premises and placed some of his personal effects in the building, and when found there by appellee and asked why he was in such possession, he told and advised appellee that he had annulled the contract and taken possession of the building. The filing of tms suit followed, by which appellee seeks to recover the damages which he claims to have suffered on account of appellant’s breach of the contract. Appellant by cross-complaint sought to recover certain enumerated damages alleged to be due him. The trial court submitted to the jury only two elements of damages upon which appellee might recover, namely, the'amount of money he had paid appellant on the purchase price of the property, and the loss of any profits he may have made by his sale to Johnson, which was never consummated on account of this mortgage. A verdict in favor of appellee f®r $729.75 was returned, judgment thereon rendered, from which this appeal was perfected.
The only remaining question presented by appellant is that neither the $500 item nor the $200 item for which the jury returned a verdict for appellee resulted from the failure of appellant to secure or obtain the release of the mortgage, because it does not appear from the evidence that Johnson refused to consummate his contract with appellee because of the existence of such mortgage. With this contention we do not agree. We think it satisfactorily appears'that the appellant’s failure to obtain such release was the cause of Johnson failing to perform his contract and accept the premises.
Failing to find any reversible error in the record, the judgment will be affirmed; and it is so ordered.