*1 13-1-20.1, supra, right gation nothing support says there H.S.S.D. principles. subject equitable claim is frivolous. this conclusion. The evidence, are fully supported Findings, equities H.S.S.D. asserts that “the plaintiff’s injury was infarction of that paid the one who has To inure to bills.” plaintiff’s stem which resulted in the brain is, equity, accomplish do the sub injury totally per- quadraplegia. This justice, see stantial ends United States manently plaintiff pursuing disabled Fidelity & G. Co. Raton Nat. Gas any gainful activity employment. or Plain- supra, payment more than the of the bills is arm, right use of her partial tiff has no use Here, proper to be considered. it was extremity, and is confined to a other plaintiff’s injury, consider the extent of ability speak wheel chair. Her has been claim damage extent to which her was com greatly impaired. physical Her condition $100,000 promised, fact that the settle plateau, improve- a little future has reached largely accomplished through ment was anticipated. ment is Plaintiff will need full plaintiff’s attorneys, efforts of the uncon care others for the rest of her life. testimony attorney tradicted of defendant’s For registered Plaintiff was a nurse. sev- expenses only the medical “were a years prior injury, working part- eral to her small factor in his evaluation of the very time, $6,000 earnings her were between and case”, the indication in the court file $9,000per year. expectancy Her life at the taking that H.S.S.D. was effect a “free injury approximately years. time of plaintiff’s ride” on efforts. Under this rec findings fully support These the conclusion. ord, $10,000 an award smaller than the which H.S.S.D. received would The trial court concluded: However, justified. we do not understand equities require 6. The in this case complain of the amount of its H.S.S.D. that any money Court to consider also award; equita its basic contention is that which the Intervenor recover in this applied. ble considerations could not be We due, extent, large very case has been to a contrary. have held to the
to the fact that suit was filed judgment is affirmed. Defendant, against Plaintiff and to energies expended in pursuing the IT IS SO ORDERED. by plaintiff’s attorneys; claim the Court JJ., HERNANDEZ, HENDLEY plain- must also consider the fact that cur. charging are attorneys contingent tiff’s recovery. fee of 25% of the nothing supports
H.S.S.D. asserts findings, going
conclusion. Certain case,
preparation support the conclu- Evidentiary support findings
sion.. for the appear in the court file. That file shows P.2d McCASLAND, preparation through of the case mo- and Sims Dallas tions, interrogatories, depositions and the partnership, pretrial order. H.S.S.D. did not intervene Plaintiffs-Appellants, pretrial until after the conference.
The trial court concluded: PRATHER, Defendant-Appellee. Paul D. equities 9. The in this case require No. 3342. $10,- the Intervenor be awarded 000.00 from the proceeds settlement of New Mexico. Appeals Court $100,000.00,and that the balance of the Sept. $90,000,00 go to the Plaintiff. [sic] challenges this H.S.S.D. conclusion on the 13-1-20.1, contrary
basis that it is to §
supra. We have held that subro- H.S.S.D.’s *2 Houston, Hobbs, plaintiffs-ap- L.
Glen pellants. Hobbs,
Maddox,
Cox,
George
&
Maddox
Roehl,
Modrall,
Harris
Sperling,
Hopkins,
J.
Sisk,
defendant-appel-
rigorous
L.Ed.2d 80
set out a
Albuquerque,
test for
determining
whether a
fails
lee.
state a claim
which relief may be
OPINION
granted:
appraising
In
the sufficiency of
LOPEZ, Judge.
*3
follow,
course,
complaint
the
we
of
the
plaintiffs
The
sued the defendant
for
accepted
complaint
rule that a
should not
acid,
to
brine
breach of
be dismissed for failure to state a claim
enjoin
and fresh water and to
future
it appears beyond
unless
doubt that
the
The defendant
breaches of contract.
plaintiff
prove
can
no set of facts in
complaint
dismiss the
for failure
moved to
support of his claim which would entitle
upon which
to state a claim
relief could be
46,
him to relief. 355
78
U.S.
S.Ct.
45 -
granted. The trial court dismissed the suit
at 102.
prejudice.
plaintiffs appeal
The
and
we reverse.
purpose
of a motion under
12(b)(6) is to test the formal sufficiency of
presented
The sole issue
relief;
e.,
the statement of the claim for
i.
whether
the dismissal of
com
claim,
to test the law of the
not the facts
plaint pursuant
12(b)(6)
the
to Rule
Sears,
support
that
it. Niece v.
Roebuck &
Procedure,
21-1-
Mexico Rules of Civil
(N.D.
1968).
293
792
Okla.
4,
1(12)(b)(6),
1953
Also, in considering
complaint
whether a
1970)
appropriate.
upon
states a cause of action
which relief
posits
pro-
the
The defendant
in his brief
granted,
the court
accept
must
as
ceeding
for failure to
as a motion
dismiss
pled.
true all the facts which are
Jones
12(b)(6),
the
state a claim under Rule
and
International
of Operating Engi
Union
plaintiffs posit
proceeding
the
as a motion
neers,
322,
(1963).
72 N.M.
summary judgment. The trial court’s
Further, a motion to dismiss for failure to
ruling is set out as follows:
granted infrequently.
state a claim is
In
ternational
Erectors Wilhoit
Erec
Steel
ORDER OF DISMISSAL
Serv.,
tors & R.
having come
The above cause
on before
New Mexico adheres to the
on Defendant’s Motion to Dis-
broad
Court
purposes of
12(b),
the rules and construes the
pursuant
miss
to Rule
the Court
liberally,
rules
particularly
they apply
having considered said Motion and the
pleading.
Supreme
As the New Mexico
support
response
Briefs
and in
filed
Bunt,
thereto,
Court stated in Carrol v.
having
and
considered Plaintiff’s
(1946):
172 P.2d
Complaint and the contract attached
[sic]
thereto,
counsel,
argument
and
and
general
“The
policy of the Rules re-
being
fully
advised in the
quires
adjudication
on the merits
premises, finds that Defendant’s Motion
procedure
rather
than technicalities of
granted,
is well
and should be
and
taken
and
rights
form
determine the
Complaint
state a
Plaintiff’s
fails to
litigants.”
[sic]
the
granted,
claim
which relief can be
Generally,
complaint
breach
therefore,
is,
and it
(1)
allege:
contract must
the existence of a
ORDERED, that Plaintiff’s
Com-
[sic]
contract;
(2)
valid
binding
plain
and
the
be,
is,
plaint
hereby
and it
dismissed with
compliance
tiff’s
with the contract and his
prejudice.
it;
performance
(3)
obligations
judge’s
It is clear from this order that
general
performance
averment of the
12(b)(6)
pursuant
order was made
to a
mo-
condition precedent;
damages
tion.
suffered as a result of defendant’s breach.
Miller,
Supreme
Wright
Court in Con
United States
Federal Practice and
Gibson,
ley v.
2 Procedure:
U.S.
S.Ct.
Civil §
it.
contract which was attached to
complaint
in their
alleged
plaintiffs
whether,
therefore,
question,
in the light
into a Contract
entered
parties
that the
plaintiffs,
to most favorable to the
and with
Agreement not
Business
Sale
behalf,
every
resolved in their
terms of the
doubt
that under
Compete;
all the
states
valid claim for relief.
agreed to
the defendant
tract
he needed from the
and fresh
position
took
The defendant
in his
has refused
the defendant
plaintiffs;
paragraph
motion to dismiss that under
water from the
and fresh
buy all brine
four of
been
although
always
such has
plaintiffs,
acid,
obliged
all his
and fresh water
him,
plaintiffs
although
available
but
plaintiffs,
are
so;
him to do
asked
specifically
have
mutually obligated
required
sell the
damaged.
plaintiffs and fresh water
defendant.
acid
Thus,
para-
the defendant contends this
copy
was a
Attached
*4
is
graph
of
of the contract
unenforceable be-
contract,
pertinent portions
the
the
mutuality
obligation
is no
of
cr
cause there
below:
set out
which are
consideration.
Seller,
in considera-
for and
1. That
the cove-
paid
to
and
the
be
tion of
sums
generally
of contract is
labeled
kind
kept
and
agreements
to
nants and
output
a
or
and de-
requirements
Purchaser, agrees to
the
performed
argue
not
point.
fendant does
the Purchaser
and
the Purchaser
sell to
only argues
that since
defendant
the four hot
Seller
buy
to
from the
agrees
sell, there
no
obligation
are under no
to
.
oil units
mutuality
obligation.
of
The Uniform
the Seller
pay
2. The Purchaser
controlling
Code is
New
Commercial
$125,000.00,
sum of
price
50A-2-306,
the
Mexico and
N.M.S.A. 1953
§
$100,-
of
the sum
1, 1962)
as follows:
payable
pt.
reads as follows:
cash,
which
acknowl-
receipt of
000.00
Output, requirements
50A-2-306.
and
$25,-
Seller,
of
the sum
edged by
and
dealings.
(1) A term which
exclusive
—
of
according to the terms
000.00, payable
output
quantity by
measures the
the
separately, by
note
promissory
a
executed
requirements
buy-
or the
the seller
simple
agrees
pay
to
which the Purchaser
output
require-
er means such actual
or
per
per cent
of 8
at
the rate
interest
faith,
good
except
occur in
ments as
balance, and
principal
on said
annum
quantity unreasonably dispropor-
full
inter-
agrees
payments
to make
any stated estimate or in the
tionate to
of the month of
the end
est accrued at
a
nor-
absence of
stated estimate
commencing
year,
each
September of
output
comparable prior
or otherwise
mal
September 1972.
de-
requirements
be tendered or
or
year
a
that for
five
agrees
3.
manded.
Seller
3, 1971,
September
beginning on
period
(2)
agreement by either the
A lawful
.
indirectly
not, directly or
he will
dealing
buyer
seller or the
for exclusive
treating service
oil
in the hot
engage
goods
imposes
concerned
in the kind
business,
100 miles of
a radius of
within
agreed
obligation by
an
unless
Eunice, New Mexico.
the
seller to use best efforts to
the
per-
buyer
same is
to use best ef-
goods
that the
extent
To the
promote
(Emphasis
federal
their sale.
Mexico and
forts
New
missible under
added.)
he
law,
all acid
agrees
Purchaser
Hot Oil Service
needs from
Porter and Sons
The defendant relies on
fresh
all
agrees
Products, Co.,
Distiller
National
he needs from Sims
1963),
a case which arose
partnership.
a
adoption of
prior
Mexico
In that
the Uniform Commercial Code.
essentially
limit-
inquiry Our
mutuality
lack
court held a
case the trial
contents of the
ed
notice,
existed,
Open price
(1)
after
reasonable
50A-2-305.
term. —
oral
terminate
con-
parties
could
.
.
can conclude a contract
tract.
though
for sale even
price
is not
settled.
In such a
price
case the
is a
distinguishable. First
Porter case is
price
reasonable
at the time for delivery
all,
the contract
ruled that
the court
if
requirements
was not a
issue in Porter
tract;
major issue in that case
secondly, the
(a) nothing is said as
price;
or
the notice of termination was
was whether
(b)
price
is left to be agreed by the
reasonable.
parties
they
agree;
fail to
or
v. C. R. Davis Contract
In Gruschus
(c)
price
is to be fixed in terms of
Co., Inc.,
N.M.
ing
agreed
some
market or other standard as
Supreme
(1965), the New Mexico
Court held
person
set or recorded
a third
agen-
or
party
agreement
wherein one
cy and it
is not so set or recorded.
“ ‘necessary
to furnish material
agrees
specific
50A-2-309. Absence of
pave
of said concrete
preparation
provisions
”
—Notice
termination. —
reality
requirements
was in
con
ment’
shipment
The time for
or delivery
or
meaning
50A-2-
tract within
other action under a
if
pro-
contract
306(1).
agreement by
A
either seller
lawful
vided in this article or
upon shall
buyer imposes
corresponding duty
or
be a reasonable time.
50A-2-306, N.M.
party
the other
under §
(2) Where the
provides
1953, supra.
S.A.
*5
performances
successive
but is indefinite
Defendant
also contends
there
in duration it is valid for a reasonable
A
was no consideration.
contract must be
time but unless
may be
whole,
as a
with
considered and construed
terminated at
by
time
either party.
given
meaning
significance
part
to each
(3) Termination of
a contract
one
parts,
with all other
so
proper
in its
context
party except on the happening of an
parties.
to ascertain the intent of the
as
agreed event requires that reasonable no-
Lindsay
&
Construction Co.
Schultz
tification be
received
the other party
State,
(1972).
In
83 N.M.
P.2d 612
agreement dispensing
and an
with notifi-
four,
paragraph
other sections
addition
cation is
operation
invalid if its
would be
plaintiffs
of the contract set out that
unconscionable.
hot oil units to the
agree to sell certain
defendant,
agree
compete
not to
with
previous
No
New Mexico cases have in
in the hot oil business. This
the defendant
terpreted
However,
50A-2-305.
§
in Illi
Schultz,
legal consideration.
su
constitutes
nois Commerce Com’n. v. Central Ill. Pub.
Further,
pra.
inadequacy of consideration
25 Ill.App.3d
Serv.
Inc., 918 Cir. Robert 388 F.2d Sons, v. Distillers Inc. National Mexico, Porter STATE of Co., (10th 1963); F.2d 202 Cir. 324 Plaintiff-Appellee, Prod. Hall, Refining Company v. Century v. 1963); Superior Concrete DOE, child, Defendant-Appellant. John (Mo. Kemper, 284 S.W.2d
Accessories Annot., 1955); by Principal “Termination No. 3610. Containing No Ex Distributorship Contract Court of Appeals of New Mexico. Termination,” 19 A.L. Provision for press R.3d Sept. said:
Superior Accessories Concrete general
It rule in both Illinois is the elsewhere, Missouri, well as time period an indefinite
contracts for at the will of terminated either
may be
party. S.W.2d 490.] [284 solely on the Uniform relies 50A-2-309(2), Code. Section
Commercial 8, pt. 1) reads: provides for succes-
Where the contract is indefinite in du- performances but
sive a reasonable time but
ration it is valid for agreed may be terminat-
unless otherwise party. [Empha- either
ed at
sis added.]
Weilersbacher, said: supra, adoption of the Uniform Commer- Pennsylvania change did
cial Code existing law so as to aid
cause. A.2d at 807.] [218 directly point, case is unanswered majority opinion.
by McCasland Co., also, Aaron E. Levine & Inc.
See (E.D. Paper
Calkraft *7 1976); Engrg. Rockwell Co. v. Auto.
Mich. F.2d 460
Timing & Controls judgment should be affirmed.