*1
JOO
required
attitude or Supreme Court of New Mexico. fendant.” April 18, 1966. supplied, but might be we definitions
Other helpful. See that to do so would
doubt Diamond, 500;
Rest., Tighe v. (2d), Torts § 122; Baines v. N.E.2d
149 Ohio St.
Collins, 523, N.E.2d 310 Mass. Wright, 122 Colo.
A.L.R. Fanstiel v.
451,
Without light the lan- consider
we them the Yates, quoted su-
guage Carpenter
pra, impressed that this is not a we are could differ that
case where reasonable men
the conduct of defendant was not being or
character heedless described as plaintiff. disregard rights
reckless come to this conclusion on the basis
We
of the evidence in the record before us.
We conclude that record is free error, judgment
reversible and that
should be affirmed.
It is so ordered.
CARMODY, COMPTON, J.,C. J.,
concur.
201 *3 Stout, Easley Pyatt,
Lowell Hobbs, & appellees cross-appellants. and
Girand, Reese, Hobbs, Cowan ap- & pellant cross-appellee.- and
CHAVEZ, Justice. pur- This case arose from a real estate chase contract plain- entered into between tiffs-appellees cross-appellants, George and Montgomery H. and Montgomery, Juanita wife, his hereinafter referred to as “ven- dees,” wife, and V. G. Cook and his Er- taxes, years paid Cook, for those without noti- defendant-appellant and cross- minee pro fying vendees of their rata share of the as “ven- referred to appellee, hereinafter taxes, or the amount 1956 tax dors.” year neither did statement. In in- vendees 29, 1955, in the office September On quire their share of taxes or at- Hobbs, Mex- attorney Johnson, T. R. New tempt same, provided by pay the ico, warranty deed executed a contract, pay vendees and did Jan- question, property in covering the vendees uary 1957, installment' due on the con- to be Mr. deed with and left said tract. County State in the Lea placed in escrow provided The contract that the bank was in accordance in Hobbs Bank warranty authorized to deliver exe- The agreement. contract escrow vendees, and and the vendor’s lien office cuted Johnson’s vendors, at such time as vendees trust October September 1955. On satisfactory bank with evi- furnished the Midland, the contract in executed deep plowed, leveled had dence trust, a deed of Texas, executed and also land, subject drilled planed the or land question, and a ven- covering the land thereon, irrigation pumps im- said three $76,800 amount of lien note dor’s year provements to be one made within yearly paid in ten installments to be contract. the date January $7,680 beginning each agree- escrow instruments These found : The trial court office ment were delivered Johnson’s October, 1956, in No- again “9. however, thereafter; days a few Hobbs George vember, plaintiff misplaced in instruments were John- Montgomery went to the escrow H. and were not delivered son’s office County Bank and agent Lea State September agent. Between escrow officer the bank’s advised within September plaintiffs performed the had year’s provided in the escrow limitation the escrow contract conditions of equipped drilled and agreement, vendees to the deed. them which entitled irrigation wells on the two three sufficient plain- escrow officer advised *4 question root in and land sections of papers none of the escrow tiff that raked, deep plowed and plowed, leveled including had ever been the deed compliance with in substantial both sections agent placed escrow with the re- agreement. Vendors of the terms delivery could not compliance and 1956 in 1955 tax statements made. Proof of ceived be of the contract conditions question in and vendors covering the land not plaintiff was asked of the nor they ready fendants that were by furnished him. payment and would make the when placed deed was escrow “10. Plaintiff not did make demand for County the Lea State Bank. The delivery upon of deed Theodore R. placed never the bank except or Defendant Cook Johnson payment and the was never made by copy of the letter of March or further tendered. April the letter of Upon receipt of the letter of “14. From the time the contract was re- April 5, 1957, plaintiff, from duced writing until the filing defendant V. G. Cook instructed case, answer in this Theodore attorney his Theodore R. Johnson R. attorney was the Johnson place pa- not to the deed and other Defendants, Cook and the Mont- pers escrow, re- gomery Plaintiffs relied attorney. tained counsel and advice of at- another torney. Montgomery Plaintiff did “11. 27, 1957, The letter of March from papers deliver the office plaintiffs’ attorney to the escrow R. Theodore with the agent Johnson was notice understanding that Mr. agent any not to deliver of the es- would deliver them to the escrow any crow instruments to of the agent. parties. May, 1957, In pay January plaintiff
“12. “15. Plaintiff did removed the 2, 1957, pumps and motors from installment Vendor’s the three irrigation Lien Note nor make a tender of wells and moved them payment premises. on or before the due date. 6, 1957,
“13. gave On March defendants plaintiff “16. cultivated about plaintiffs day written notice three-fourths of the south half registered mail of default of the Section any 9 and did not cultivate January pay- installment of the other land. plaintiffs
ment further notified “17. The value the land at the time payment if was not made ; purchase $76,- contract was days within 30 the contract would plaintiff 800.00. The value after terminated cancelled. Plain- completed had work payment
tiffs did make within day period notify $160,000.00.' but'did de- acre or $125.00 *5 204 subpoint raised first of cotton The grew 385 acres
“18. Plaintiffs 2 of Nos. and produced court erred conclusions law year and for of deliver the deed per The that failure acre. of hale 24ths agent substantial to the escrow constituted a put government in a was cotton and material breach of contract. government allow- loan, loan that, was time demand made 34(1per pound, contend at the being ance 31^ and March weighed letters of vendees’ bale average an and 5, 1957, delivery the escrow ap- April produced pounds. The land to such de- cotton, agent, not entitled vendees were proximately 288 bales in de- that time livery because at approxi- having a loan value fault; and vendees had been notified since per bale. mately $155.00 that unless on March 8, 1957, plaintiff moved “19. On June payment due the defaulted installment Jan- premises man from the his hired thirty days, paid uary was within nothing thereon from and did property interest be can- in the would possession took date. Defendants provisions celed and terminated under the balance of 1957 and raised for the argue that ven- the contract. Vendors feed. some cotton and default, may having remedied said dees not expended “20. Plaintiffs the total sum complain failure to not now of vendors’ $49,120.00 plowing, in root place agent. deed the escrow with deep raking, leveling plowing and agreement and contract for The escrow casing drilling the land and in and following paragraph contains the the sale irrigation said three wells warranty regard to the deed: necessary. sum reasonable this executed a “The sellers have date damaged by The land “21. warranty purchasers favor thereon, operations plaintiffs lien obtained therein vendor’s note fact the land but in the value sellers, in favor and deed of trust thereby. was enhanced deed, warranty lien vendor’s note which only of rental value “22. evidence along deposited, and deed trust shall acre, testi- land is $4.00 contract, in original of this es- by the Hilburn.” fied to Witness Bank, County crow the Lea State Hobbs, Mexico, shall New bank point such I that a vendee Vendors’ parties agent of both con act may not real estate in default rescind a hereby specifically to de- authorized improve tract and obtain restitution pur- warranty deed to the damages liver sustained. ments made or recover and the vendor’s lien note and entire chasers contract order to reach the most equitable of trust to the at such time Properties, result.. Palisades sellers Inc. purchasers Brunetti, 522; furnished said have 207 A.2d N.J. satisfactory that the Marxsen, bank evidence Metschke v. 176 Neb. purchasers deep plowed, or Am.Jur.2d, Contracts, leveled N.W.2d §§ *6 planed 321, 322; irriga- land such land and drilled 17A Contracts.§§ C.J.S.
tion wells thereon and installed suitable
absolutely
place
Here vendors
refused to
irrigation pumps therein.”
the
agent
deed with the escrow
unless the
by
payment
In 1956
were informed
the
January
due on
was made.
agent
provisions
escrow
that
the deed had not been We find no contract
requiring
placed
April,
payment
in escrow.
In March and
vendees to make the first
before
delivery
duty
vendees demanded
place
the
vendors have the
the instru-
vendors,
specifi-
deed from
but
vendors had
ments
escrow. Neither do vendors base
cally
attorney
upon
their
any provisions
instructed
to withhold
refusal
in the
delivery.
addition,
such
contract.
vendees offered to
payment
make the
as
as the
soon
deed was
agreement
The escrow
and contract for
agent.
delivered
escrow
We believe
provides,
paragraph
sale further
in the
al-
that,
already spent
since vendees had
in ex-
lowing
days
remedy
vendees 30
in which to
‡49,000
land, they
cess of
on the
would have
any default, that:
been foolish to
made the additional
have
“ * * *
may immediately
the sellers
payment
any legal proof being
first
without
terminate and cancel this contract and in
deposited
agent by
the
first
with
escrow
the event
such termination or cancella-
right
property.
show their
vendors to
County
Bank, Hobbs,
tion the Lea
State
Terrell,
W.
Land Co. v.
(Tex.
E. Stewart
Mexico,
hereby specifically
New
au-
Compare,
Civ.App.1924),
been delivered comply as deed willing -to soon as vendors delivered the wére Vendees agent. as the the escrow as soon of the contract the terms deposited. Vendors so instruments were given need Vendees not have depositing nothing to lose
had (cid:127) agent any proof escrow land work they made agent. Had with the performed, argue, had been be delivery, not irretrieva- their deed was such deposited cause the deed had not been then refused to if had For ble. agent. the escrow It is settled that well provided the con- payments as make the act, equity require does not a useless proper given no- tract, could terms of executed contract were time, and, en- due been tice default parties binding until the deed redelivery from the titled to deposited and other instruments were appears that agent. vendors’ It thus .escrow agent. the escrow mere more than governed actions apprehension the deed. contention, attorney Vendors’ paid their vendees had fact that parties agent was the for both taxes, provided in pro rata share consequently parties both failed to deliver *7 contract, does not and agreement the escrow bank, the the instruments to is without to de- refusal prevent failure and vendors’ Vendors’ instruction to to merit. Johnson being breach from a liver the deed agent the from escrow withhold deed the notify vendees failed to contract. Vendors any relationship extinguished joint agent contract, default, provided by the of this probably is evidence that and Johnson no been default and could have there agent parties. This is not the for both notified' were so until vendees readily apparent the fact that vendees opportunity rem- to given vendors instru requested to deliver no time also note that edy We such default. agent, and refused ments to the he escrow to provided for vendees is in contract to with to do so vendors’ instructions pay taxes. such delivery. hold obligation to de- that vendors’ We believe support cases cited" agent was an to the escrow liver deed applicable, not because their contention are precedent so vital absolute condition presuppose ven- that the all of those cases a to so failure essential to the contract default, willing is dor not in that he is any relieved vendees deliver perform, equities are ready to and that ‘obligation such deed was whatsoever until heavily vendee. entirely in favor rea- not deposited. were so Vendees
'207 holding the trial correct court allowed vendors the The trial court was reasona^ ble value of refusal of vendors to rent for but did the failure and not allow warranty they to the escrow them rent for the' because had deliver crop year. funda- benefit of agent a substantial and harvest that constituted There Further, is contract. also evidence that mental breach of the received the support benefit of is substantial evidence considerable there assets, findings intangible they acquired the trial court’s which remainder of with- therefor, receiving under out credit vendors assert are erroneous since the same which required by point. were not their first the contract. This contention, equity, that vendees failed do next that vendees contend completely merit. without a rescission of the con are not entitled to point a mutual rescis grounds argue tract based on Under IV vendors above, committed As that the trial court sion. stated erred conclusion of allowing contract because No. no breach of law interest the rate payment obligated make the first not annum from be 6% June unliquidated readily were delivered to until instruments cause claims ascer agent. need not discuss wheth prior judg We tainable do not bear interest mutually parties rescinded con er the ment. The trial court concluded that in available to vendees tract. Rescission was terest should be allowed from the date that deliver the deed possession premises because vendors’ failure to vendors resumed agent substantial and the escrow on June of the contract. See fundamental breach proposition readily disposed This Robinson, Samples 58 N.M. by the excellent discussion in Trust State Mining & Petroleum Co. v. Yucca Savings Bank v. Hermosa Land and Co., Phillips Oil Howard C. Co., Cattle 240 P. P.2d 925. liquidated the distinction between and un- liquidated damages, and the fact that point III asserts Vendors’ that ven pre- court’s of interest allowance $44,- judgment are entitled dees improve- sumed to be correct. The cost offered, in their because vendees never easily ments to a fixed sum and vendees was
equitable complaint, recompense amounts, reducible to exact as shown during the 21 for the use of their land testimony and the trial the witnesses’ sup period. authority cited to month No also, findings thereon. See court’s based port In conclusion of law Inc., this contention. Quarries, 50 N.M. v. Tobin Sundt 586; 1, 175 and O’Meara supplemental No. P.2d 169 A.L.R. No. 8 conclusion 208 allowing the Company, appeal, 71 the trial court and it Insurance Commercial
v.
require
be a
would
useless act to
P.2d 486.
376
N.M.
allowing
obtain
further order
the cross-
appealed from the
After appeal.
purpose
7(2)
The
of Rule
is to no-
decision,
timely
filed
trial court’s
tify
appellants (vendors)
of the cross-
moved to
cross-appeal
and vendors
notice
appeal.
this
Even were
court to find that
cross-appeal
strike the brief
dismiss the
required prior
cross-appeal,
an order is
to a
assert that
chief
Vendors
in
of vendees.
substantially complied
still vendees have
be
cross-appeal should be dismissed
provisions
See,
with the
Luk
Rule.
comply
21-
cause vendees failed
§
Traylor,
ins v.
22 N.M.
It
209 ments, point, we Regarding vendors’ next less an $5,120 allowance of for rent 1956, $44,000, adequately plus set forth in or hold that vendees interest from 6% point cross-appeal, their and further amounting $17,526.60. on Ven- June argue they no need file a counter that there is dees that are entitled to recover where, here, praecipe al vendors have the difference between price the contract ready praecipe calling the com ($76,800) filed a for and the value of the land after plete (2), completion 21-2-1(12) N.M. Section of ($160,000), the work record. or a S.A., Comp. $83,200,plus 1953 total of per interest annum 6% $49,120 on 1957. as- Vendees June ground last for dismissal Vendors’ sert (1) They error that: were not cross-appeal that to allow damages awarded for bargain;” “loss of cross-appeal hardship will work an undue (2) that vendors are not entitled to the on of the fact that vendors. In view ven- $5,120 allowance 1956; for rent in sought recovery complaint dees’ a identical (3) interest computed should have been sought by cross-appeal, we that now $49,120 $44,000. on instead hardship Fur see no whatever on vendors. ther, if vendors received the benefits juris familiar rule in this It they which not en were damages diction that pur recoverable titled, hardship chaser, be there can no involved convey, for failure a vendor to giving fruits of their labors. the difference between the actual value of especially This is true where price vendors have the land and the stated in the contract. fully Nickels, at all as to times been advised v. 344 P.2d taking cross-appeal 697; Cox, substan Adams v. N.M. point 555; argued
tive
Tidwell,
therein.
Pugh
v.
N.M.
1001; Conley
Davidson,
P.2d
appealed
Vendees have
from the trial
also,
tract was and found the argue value Vendors the rule announced completed after vendees had work to be in the above applicable cited cases is not $160,000, $83,200. a total case, enhanced value instant because those cases appeal Vendors from the damages trial court’s hold- suits for all for breach of contract. they ing judgment only They were entitled to that since contend vendees made no $49,120, improve- court, for the actual cost of the election of remedies the trial be- arising subject out same of contract or damages breach matter.
tween >» * * * rescission, cannot recover that vendees would cross-appeal because Remedies, also, Am.Jur., Election See damages receiving amounted what 4.§ argue that both remedies. Gary ex In State rel. v. Fireman’s Fund compel refusing to ven- court erred *10 Indemnity Company, 355 P. the remedies at election of to make an dees 2d we stated: trial. recovery now
“We announce that that first note We quantum should be on meruit allowed the any error of may complain of not though originally suit even the was to refusing force vendees contract; trial court express framed on and that remedy. could select their freely Vendors pleadings al- amendment be and, appeal in their asserted this error any this accomplish purpose lowed to so, argument such since to do including failed con- stage proceeding, of the by urged be been and cannot has waived sidering pleadings con- amended to cross-appeal. response them in impressed proof. form to We are addition, an election of remedies by holding such bringing that this our we are required In Honaker v. vendees. procedure line with the decisions in into Sales, Albuquerque Ralph harmony Auto Pool’s the federal and into courts Inc., quoted we pro- 394 P.2d N.M. spirit the letter and of our rules and * * States, (10 CCA from Bernstein v. United cedure, 1958), it stated 256 F.2d where always Inasmuch vendees have meas “the lawsuit are dimensions of the recovery be in that should claimed by proven.” ured We further what $83,200 if im- the amount of appellees “it stated that would seem provements did enhance the value damages or relief are entitled to in either amount, this see how land in we cannot held that the doc rescission.” there We recovery received a double would be procedural trine of election of remedies if decreed. such amount were Press, quoted Inc. Phil from Dial v. $83,200 complain that Vendors lips, N.J.Super. A.2d 195 : because to vendees should not awarded “ of remedies ‘The doctrine of election award, amount, trial court’s over * * * its the desire has foundation solely appreciation. is due economic to eliminate vexatious rely the law entirely Vendors on Gottwald Weeks, multiple wherein litigation causes action purchaser this court held that was not involved the cross-appeal. The im- chargeable depreciation provements market on the land enhanced its value by $83,200. of real estate caused economic value The trial court further found argue that, by conditions. the value of token, purchaser re- $49,120, same should not be amounted to pro- and that vendees compensed appreciation. ar- land This duced 288 bales of cotton a loan value First, gument bale, invalid two reasons. $44,640. or $155 points we find no evidence which specifically court allowed val- appreciation being by eco- land caused ue improvements, which amount re- Instead, only nomic wit- conditions. duced $83,200 the enhanced value of point $34,080. testifying However, ness this stated that the trial court also prices area land had remained stable in $44,- found that profit vendees made a pertinent (loan in- involved at all times cotton), value of the which sum Second, stant case. the manner in which specifically trial court did apply findings Nos. against the trial court of fact made the enhanced value the land. 17 and be- that the trial court indicates We believe trial court did take such di- price appreciation lieved the stemmed figure because, by into ap- consideration $49,- expenditure rectly plying profit the actual against vendees’ the remain- findings 120 made These show vendees. der value, of the enhanced vendors are *11 the the value by $10,000. that enhanced finding short But the of the land and accounted for the subse- of reasonable rental to vendors allowed fac- quent appreciation; $5,120, not that economic parties closely to the are returned produced appreciation. tors land value quo the the is status ante. This the most equitable conclusion the at under facts However, assuming appreciation the See, Weeks, supra; hand. Gottwald v. factors, note caused we was economic Cunningham, 1037, Lutz v. 240 Iowa 38 approval decision in with our ; 12, supplemented 638 48 A.L.R. N.W.2d Nickels, supra, upheld dam- we the wherein supplemental 68 A.L.R. deci the ages by the trial court on awarded sions; Purchaser, Am.Jur., Vendor and grounds that there was substantial evidence Purchaser Vendor and § § C.J.S. support increase due to the award 602. prices. cattle cross-appeal hereby The of vendees judgment' denied and the the district above, Despite are our discussion we court is affirmed. opinion that the trial court arrived equitable most issues It so ordered. decision on the
COMPTON, Dictionary. Thus J., the rule have con- concurs. must request
templated'the making for an of a CARMODY, specially J., concurring. C. granting cross-appeal. In the o'rder case, merely there was a notice of
instant (specially CARMODY Chief com- Justice cross-appeal, although this would curring). exists, comply with 'the it rule as it now not sufficient was in this case. agree opinion
Although I inso- appeal, disposes far it the main I opinion The cases cited main are in the disposition join cannot with the method authority the determination cross-appeal, feel that dis- of the jurisdiction this court has cross- of the cross-appeal cussion merits appeal, lacking granting an order the same. not warranted. Contrariwise, Younger Van Frederick v. Lines, 1964, P.2d jurisdiction of
This court did not obtain specifically recognized we that an order al- cross-appeal, the lack because of lowing cross-appeal 7(2) Rule under allowing the any court order of district necessary prior for cases to March filed opinion, pointed in the this As out same. cross-appeal and a notice of Therefore, under filed in case was respect to cases thereafter. filed grant existing, in order then the law necessary it to this court jurisdiction me, question, jurisdictional this is a To 21-2-1(5), then Rule N.M.S.A. under the compliance mentioned and substantial obtain an order file a motion opinion main Sub- in the is not sufficient. appeal. allowing an from the court juris- compliance satisfy the stantial did not (2), 21-2-1(7) cross-appeal (§ N. rule requirement appeal prior dictional an expressly provide M.S.A.1953) does not change re Es- see In Saiz Rule court be ob- district an order tate, P.2d nor supreme court give in order tained satisfy jurisdictional requirement it can spe- nevertheless, rule jurisdiction; respect cross-appeal. to a application cifically make states “shall fully opinion that, It is that the main when realized therefor,” I believe do by the grant claimed together, refuses to the relief old are considered 7(2) and the result, cross-appeal. but I reach the same making any question but that can be there *12 I basis that not believe court obtaining on the do contemplated “application” cross-appeal. There- fact, consider the “appli- can even As matter of an order. express my fore, dis- making I feel called a re- cation” means “The act- fact point up agreement, order to Law something.” Bouvier’s quest for See cas'e, On the opinion in this the main only opinion question, is the' jurisdictional justices may not be Considered two n authority,
Hugh Plaintiff-Appellant, IRVIN, COMPANY, Employer,
RAINBO BAKING Indemnity Company, Royal In- surer, Defendants-Appellees.
No. 7780.
Supreme of New Mexico. Court
April 25, 1966.
McAtee, Toulouse, Marchiondo, Ruud Gallagher, Mary & Walters, C. Albu- querque, appellant.
Rodey, Sloan, Dickason, Robb, Akin & Gilkey, Duane Ritchie, C. C. Albu- James querque, appellees.
NOBLE, Justice.
Hugh appealed judg- Irvin has from a denying ment his for workmen’s claim compensation. Irvin, by trade, employed by
A baker Baking Company, Rainbo asserts that some