*1 еxpress indemnity. an forcing to the contract upon compensation ciple of tort * * That The workmen’s decision is reversed. regardless of fault injured employee an compensation bar in- unlim- statute does not from the exchange for a release in demnity claim third was theretofore liability to which he ited when that is based on an employer claim subject upon theory negligence. express indemnity. contract of Thus, employer required pay com- is employee a lim- injured in pensation to summary judgment favor of Car- and, exchange, employer reversed; ited amount is remanded ter the cause is liability. from unlimited is released proceedings. further policy involved. public is There another IT ORDERED. IS SO Corporation v. Ti- Electric Credit General N.M. 428 P.2d 40 A.L. denberg, 78 LOPEZ, JJ., and concur. HERNANDEZ (1967) states: R.3d 1151 be- policy encourages freedom [Pjublic competent right
tween
contract, enforcement of requires
contracts, clearly they contravene unless public mor- positive or rule of
some law als. (Bud) d/b/a Robison H. E. ROBISON Enforcing of in express contracts Plaintiff-Appellee, Realty Company, enforcing loss demnity is no more than v. contracting agreed distribution KATZ, Defendant-Appellant, Beverly Indemnity: The parties. Contribution and Acts, Compensation Effect of Workmen’s Q. Campbell, Opal Campbell and A. Sam ar Va.L.Rev. 959 This at Defendants-Appellees. not rangement to distribute the loss does Counterclaimant, KATZ, Beverly securing any policy offend concerned Cross-Claimant-Appellant, compensation; payment of workmen’s compensation payable is not affected arrange This indemnity agreement. (Bud) d/b/a H. E. ROBISON policy not from the depart ment does Realty Company, liability; policy limiting employer’s Counterdefendant-Appellee. - is involved is the remains intact. All CAMPBELL, Plaintiff-Appellee, Opal A. departure policy. If employer’s employer voluntarily relin desires to statutory he do so. quish protection, his KATZ, Defendant-Appellant. Beverly relinquishment prohibited by is not Such KATZ, Defendant-Appellant, Beverly 52-1-9, supra; such a relin 52-1-8 §§ Counterclaimant, Cross-Claimant, policy with the fa quishment consistent voring right to contract. As the with opinion Supreme Court states: drawn BROWNE, SUTIN, THAYER & damage is done where businesses Great Appellees. certainty legal cannot count on in their No. 3665. relationships strong must reasons Mexico. Appeals New Court of support a court when it interferes in a legal relationship voluntarily assumed March no rea parties. This Court sees such 2, 1980. Rehearing April Denied it before now.
sons April Writ of Certiorari Denied Oil Appeals The Court decision Gulf Co., Opеrating Corp. v. Rota-Cone Field insufficiently supra, in en- public policy involved
considered
3x5
317
*3
jurisdiction
miss
lack of
was denied
September
Although
this court on
petition
Katz filed a
appellant
bankrupt-
cy
Albuquerque
federal court
on No-
16, 1978, those proceedings
vember
do not
our
appeal,
bar
consideration of this
since
bankruptcy
the trustee in
abandoned the
appeal
assets connected with this
on Decem-
Although
ber
a determination of
court,
bankruptcy
pending
in federal
involving
state
consider claims
property
which has been
abandoned
bankruptcy. Vybiral
trustee in
v. Schil-
dhauer,
144 Neb.
loss must requiring complete the strict rule restora- granting whether the of rescission Mexico prerequisite for rescission tion as a does not restitutionary award of dam precludes an See, apply. generally, Restatement of Res- Thrams, supra, Supreme ages. In (1937); also, a. see titution Comment § specifically refused to decide if a Court Id., Comment d. rescission of a con plaintiff granted who is representations of the tract due to the false complex,
When restitution is
may
special
granting
agent
order an
vendor’s
is also entitled
parties.
accounting between
Farns
Damages for restitution are dif
damages.
Feller,
v.'
256 Or.
worth
damages for breach of con
ferent
purchaser
is entitled to the
tract;
permissible
are
and the former
land,
paid
return of all consideration
for
position
former
plaintiff
to his
restore
interest,
rental value
less
fair
granted because of fraud.
when rescission is
possession.
while it was in his
property
Markus,
Or.App.
38
589
Kinkade
Thrams,
Gottwald,
He
supra;
supra.
must
other states allow
Several
him,
any
waste done
also account for
restitutionary
damages
recovery
buildings
ap
including the removal of
misrep
along with rescission when fraud
purtenances from the land.
Id.
the claim. Lob
resentations is the cаuse of
accounting
An
between Katz and
Miller,
250
Cal.App.2d
dell v.
114
P.2d
appropriate
complexi-
bell is
because of the
Schwartz,
(1952);
370
Bernofsky
ty
situation. Katz is entitled to the
Duke,
(La.App.1979);
Mock
So.2d
house,
return of her Los Alamos
her down-
(1969);
Mich.App.
174 N.W.2d
payment,
any
payments
other
made
Pierce,
(Tex.Civ.
Sawyer v.
580 S.W.2d
property, including
payments on under-
3002(e)
App.1979);
N.Y.Civ.Prac.Law
lying real estate
mortgages,
contracts and
We
restitution
(McKinney).
believe
plus interest.
From
should be deducted
purpose
with the
ary damages conform
the fair rental
park
value of the trailer
rescission,
put
which is to
defrauded
it
possession, excluding
while wаs in her
position as he
good
back in as
space
trailer
Campbell. Similarly,
used
contract.
occupied
entering
before
Campbell
required
should be
Consequently,
damages
that such
we hold
the fair rental value of the Los Alamos
house, excluding
may
along
with rescission.
apartment
used
awarded
Katz,
posses-
for the time
was in
However,
damages should be limited.
adjust-
sion of the house.
rental
Other
Supreme
has stated
The New Mexico
Court
necessary. Lastly,
ments
also be
in a
recoverable
suit
if
were
accounting
payment
should include
rescission,
special dam-
they
would be
original
value of the
trail-
Thrams,
damages are
ages.
supra. Special
mortgaged by
ers sold or
Katz.
actual, but
which are the
defined as “[t]hose
*7
injury com-
necessary,
result of the
not
Consequential
Special
Damages
of,
it
a
plained
in fact follow as
which
that,
rescission,
along
contends
with
consequence in the
proximate
natural and
money
she should recover whatever
is nec-
”
* *
*
Black’s Law
particular case.
essary
position prior
to restore her to her
1968).
(rev.
“Spe-
ed.
Dictionary 469
4th
making
agree,
the contract. We
with the
“consequen-
damages
cial”
are the same as
1) only
expenses
limitations that
those
be
Dobbs, suprа,
3.2.
damages.
§
tial”
See
recovered which must have been or should
expenses
damages are limited to those
Such
been,
Robison,
have
contemplated by
or should have been
which must have been
party
conferred,
with whom Katz
in whom
probable consequences of
contemplated as
confided,
relied,
she
and on whom she
as the
actions are
by
the fraud
whose
probable consequence
misrepresenta-
of his
Thrams,
tions;
supra.
2)
the basis for the rescission.
damages
these
be assessed
against
only.
Robison
out in Thrams
so
We affirm the law set
321
damages
Damages
as it limits
of a
far
defrauded
3. Punitive
party whо also
obtains
of
puni
Katz asserts she is entitled to
case,
Since,
particular
contract.
in this
damages against
agree,
tive
Robison. We
dealings
record shows that
had no
special
prove
damages.
if she
able to
is
closing
before
of
everything
transaction and that
was ar-
damages
Punitive
are
not
Robison,
ranged
through
damages will
compensation
as
awarded
be limited to
which must
those
have been
772,
Voyer,
Christman v.
92 N.M.
wronged,
contemplated by
should have been
Robison
(Ct.App.1979),
punish
595
410
but as
P.2d
probable consequences
misrep-
as
ment
the offender. Bank of New Mexi
of
resentations.
Rice,
170,
(1967).
co v.
78 N.M.
322 clearly equita It is within one hand to ‘nomi- 241
injury, opposed on the as and re to consider ‘exempla- power to of the court and on the other ble damages, nal’ Sunny Budagher v. Law fees. damages.” Black’s duce excessive ry’ ‘punitive’ Inc., N.M. 563 P.2d Enterprises, Katz is 90 supra at 467. Since land Dictionary, Robison, in the damages being from no evidence special There entitled to reckless, agreement to be conduct was found the terms of fee his record of punitive damages Katz, may also recover she or of between the Sutin firm Any that special damages firm, against him. there performed by the work hours of prove will also actual Katz able to be is reasonable nothing support is to either the If, remand, is to she unable damages. We re of the fees. or excessiveness ness she cannot be prove special damages, a to hold and order the trial court mand recovery Her punitive damages. awarded this hearing on issue. proof contingent upon of the latter is See, Christman, supra. proper former. Because we hold that with a not
remedy in this case is Attorneys’ Fees accounting set-off, but is rescission an Katz, issue Campbell and between for first time the issue of Katz raises the. concerning the firm raised Sutin attorneys’ fees. of her excessiveness attorneys’ charging lien over priority of its We her to the issue now. allow raise note, however, that We the setoff is moot. appellate is court The rule any final priority have over the lien does an raised for the first cannot consider issue party a monetary judgment awarded to v. Phillips United Service appeal. time on Co. Currell Lumber the cause. Forrest Ass’n, 91 Auto. (1971); Thomas, However, N.M.R.Civ.App. (Ct.App.1977). Dickason, Rodey, Mfg. Hanna Paint Co. exception an allows N.M.S.A.1978 (10th Sloan, Robb, F.2d Cir. & Akin objection be below. requirement made accounting 1962). the final result If part: It states in that Katz Campbell and is between opportunity to ob- party a has no [I]f money, Campbell a certain sum of owes ruling it is ject or order at time may be out judgment paid Campbell’s objection made, does the absence of judgment awarded whatever him. prejudice not thereafter Robison, only against after the Sutin exception case applies This been the amount the court paid firm has 13, 1978, at bar. On March trial for its services. determines to reasonable judgment charging granting entered its $49,099.26. lien The tо the Sutin firm for Interferences with Communications repre this firm record indicates that had $3,000 damages plus 2, 1977, appeals the May through sented Katz trial, attorneys’ fees awarded was still at the costs and representing her him violation time judgment was entered. It is not bell and assessed expect prohibiting abuse of object reasonable to the firm to Mexico law the New being their fees as with communica- own excessive. Katz interference privacy had opportunity object no the attor this award. tions. We reverse neys’ being as fees excessive at the time the occa- that on three trial court found judgment awarding сharging lien was calls to Robison returned sions may properly entered. She raise the issue listening on an exten- a third and had on appeal. conversation in short- recorded the sion who this find- not contest .Robison does
A court hand. provir hold void a by the attorneys’ the conclusion ing. sion for a note He does contest fees in or contract activity was in violation where the are oppressive. fees excessive or court that Tuttle, Bank of Dallas P. State law.
Campbell argues
Having
that we should not con-
found no New Mexico case law
appeal
sider Robison’s
because he failed
30-12-1,
interpreting
wе turn to
§
federal
page
give
his brief to
number in the
case law
interprets
which
a federal statute
requested
transcript where his
conclusion of
prohibiting the
interception
unlawful
argument
law could be found. This
is with-
phone messages. The federal statute reads
is claimed that Robison violated §
communication is
civil cause of action to a
found to be
immaterial to
lant ever submitted conclusions of law is
conclusions of law when
from the court’s
§§
Arguably,
of law contrary to that which the trial court
clusions of law.
the fact that Robison tendered a conclusion
would
out
follow.
of,
states:
of law.
here concerned with review of a conclusion
of the trial court’s
bell,
Gonzales
tors,
finding
Section
Assertion of fact must be
[Emphasis added.]
references to the
Garcia,
30-12-1 to
exception
(1973),
the rule
merit. The two
Wilson
81 N.M.
give
N.M.R.Civ.App. 9(d), N.M.S.A.1978 Court found that
Gonzales
because whether or not an
30-12-11,
or
this rule
do not
Gonzales,
us the
the law. This would not
to,
our
disregard the fact.
657,
proof
30-12-11,
Albuquerque
findings
rather than an
If it
intercepted
review
help
concerns
finding
does not
option
of it.
N.M.S.A.1978
transcript
cases cited
does
her. Wilson involves
asserts we should
these are
of the trial court’s
person
of fact. Gonzales
N.M.S.A.1978.
apply,
of fact. We are
appellate
accompanied by
Board
Otherwise
in violation of
apply
disregarding
(1970),
whose oral
showing
application
at most it
by Camp-
30-12-1,
separate
of Real-
gives
* *
to con-
review
appel-
help
It
a
*
clarified
to his conversation.
tension who
ed,
the subscriber is a
not understand that the
liability every person
police,
telephone
came to this
members,
party listening on an extension. The Court
not been
no reason to
a
Act of
bun v. United
Section 605 of the Federal Communication
authority:
sists of
ence; contents, substance, purport, ef-
phone
fect, meaning
tions and
sender shall
munication to
part:
place
a
Interference with communications con-
[N]o
[******] [Emphasis added.] reading, 30-12-1, hearing, C. Section interrupting, (Supp.1979). tak- N.M.S.A.1978 ing copying any law, message, Under current communica- the consent of one of report tion or person intended for listening another to third to the telegraph telephone without necessary his con- conversation is all that to re- * * sent *. move the activity purview from the *10 Here, although
statute. We believe that this same result the court concluded that by Legislature was intended under the “misrepresentations and nondisclosures before it was amended. As for statute material,” by Robison to Katz were and conversation, transcribing clearly it justifiably upon that “Katz relied them to illegal have been if Robison him- would not detriment, loss, damages,” her and the court had written the conversation down in self did not failure find substantial of consid- that he had shorthand. The fact someone support eration and the evidence would not activity else it instead does not make the do finding. payments such a Katz made all did not unlawful. The activities of Robison underlying mortgages and real estate N.M.S.A.1978, 30-12-1, Camp- and violate § existing park pay- contracts on the as those against cause of action him. bell has no civil July, ments came due from until Au- award of We reverse the trial court’s gust, when she herself allowed the against Campbell, to Katz as and with go contract into default. damages Campbell reverse the award of against as Robison. The case is remanded However, much of the in confusion grant with an order to to the trial court might case have been avoided if the court Katz rescission of the contract proper damages— had used measure of accompanied with bell. Rescission is to be the difference between the “before” and accounting Campbell. Katz and between “after” fair market values of the trailer remand, On the court is also to hold hear- City Compa- court business. Duke Lumber ings 1) special damages, to determine what Terrel, ny, Inc. v. 88 N.M. punitive any, may damages, and what if (1975). The was that it court’s mistake Robison, 2) awarded Katz as damages by undertook to measure balanc- attorneys’ whether the fees claimed ing profits expenses incurred Sutin firm are excessive. party, thereby miring each itself in. the judgment of the trial court is re- problem understanding Ms. Katz’ incom- pro- versed and the cause is remanded for plete concerning records of her transactions ceedings opinion. consistent with this value, park. The market or fair the trailer IT IS SO ORDERED. enterprise, market value of a business or of dependent any property, upon other is not HERNANDEZ, J., concurs. capacity operate the owner’s financial ANDREWS, part in Judge (dissenting improve enterprise property. It is concurring part). willing buyer what a wоuld will- and a was correct. Rescission The district court ing accept seller would for it in its condition proper remedy in this case. To is not a place question. at the time and Duke contract, warrant there must Terrel, City Company, Lumber Inc. v. su- be a failure of consideration. substantial pra. Robinson, Samples v. portions opinion. I concur other not warranted Rescission is mere breach of contract not so substantial object as
and fundamental to defeat parties; per- partial before failure of party gives
formance one the other the rescission,
right per- the act to be failed contract, go
formed must to the root of the perform respect
or the failure to must be in performance matters which would render thing remainder a different in sub-
stance from that for. Yucca contracted
Mining & Phil- Petroleum Co. v. Howard C. Co.,
lips Oil