*1 is, my issue of causal connection jury. question of fact for opinion, sub- negligent issue of retention against which found jury,
mitted to the circumstanc- this set of
defendant. Under
es, invade the I would be most hesitant
province jury.
Therefore, respectfully dissent. I must P. Var A. WENDELL and John
Wallace Associates, Wendell-Varsa &
sa d/b/a
Plaintiffs-Appellees, FOLEY, H.
James Company,
Development
Defendants-Appellants, Productions, Inc., Intervenor.
Reliable
No. 3464. Mexico. Appeals of New
Court
April 3, 1979. May Denied
Writ of Certiorari
OPINION WALTERS, Judge. Hijo was president
Wolfson
of Lobo
Cor-
general
(Lobo).
was the
poration
Lobo
Town,
(Free-
Ltd.
partner
Freeway Old
partner
was
way),
Freeway
general
(Old
Development Company
Town).
and Asso-
Plaintiff Wendell-Varsa
July
(W-V)
in
1972 with
ciates
contracted
provide architectural
services
Freeway to
Albuquerque
hotel.
for construction of
under
the contract
Freeway’s obligation
September
was
Town on
assumed
managed the affairs of
1973. Wolfson
Varsa, of
and Lobo.
Freeway, Old Town
W-V,
stepson
was
was Wolfson’s
shareholder,
dur-
or officer
director
period of the contract and at
ing the entire
sued Old Town
the time of the trial. W-V
billings which included two
unpaid
for
by Wolfson on
promissory notes executed
Town.
behalf of Old
provided a
The architectural
contract
services, with
fixed fee for basic
approved
compensated
to be
at
services
It
per
hour.
to the contract and
autho-
amendments
to the architect
for additional
rizations
writing.
made
services had
in
writing
in
only request made Wolfson
was
the basic contract
for services outside
consultant.
to hire a kitchen
W-V
however,
change
Wolfson,
approved
orders
boards,
display
by W-V for
prepared
consultation,
interior
layouts and
furniture
and draw-
information
preparation
six
109 items in
ings
connected
hour,
project
and for
at $25.00
orders
services re-
beyond
basic
representation
at the hour-
W-V
quired by
periodic
W-V submitted
ly rate of $25.00.
items, which Old Town
covering those
bills
April
Ultimately,
pay.
unable
*3
behalf of Old Town.
execute the notes on
statute,
accept
provi
that this
and
nies our
promissory notes
It concluded that the
change the result of
“to
enacted
sion was
and therefore
given for antecedent debts
no extension
holding that where
decisions
Judgment
require consideration.
did not
given by the
is
concession
time or other
of
notes,
interest and
plus
the amount of
lack of
fails for
obligation
the new
creditor
fees,
unpaid billings
on
attorney
and for
intended to
It is also
legal consideration.
against Old
was entered
lobby
given for more or
instrument
mean that an
Town.
obliga
liquidated
amount of
less than the
of the common
by reason
fail
tion does not
brought by Old
appeal
This
has been
obligation for a lesser
an
rule that
law
award-
asserting error in the amount
be consideration
cannot
liquidated amount
consideration,
(b)
and
(a) failure of
ed for
greater.” This
of the
the surrender
orally ap-
to
authority
lack of
in Wolfson
the consid
it clear that
commentary makes
Town con-
additional services. Old
prove
to a new
refers
under discussion
eration
by
of the total covered
tends that
and trans
transferor
pro quo between
quid
disallowed, be-
the notes should have been
There
negotiable instrument.
feree
represented by that amount
cause services
person to
all from
be none at
need
required under W—
were not additional but
permit
to
given
whom the instrument
that in
V’s basic contract.
It further claims
of cash from
instead
of a note
substitution
billings
event
should have been at $15
note then
The terms
his debtor.
$25;
hour,
change
that none of the
But when
obligation.
become the debtor’s
request
its
written
orders were made
the immediate
are
payee
the debtor and
agent.
argues there was a fail-
Old Town
lawsuit,
con
the debtor
parties in the
alleged underly-
ure of consideration for the
grounds that
on
the note
payment
tests
Alternatively,
it
ing “antecedent debt.”
not exist in whole
does
underlying
debt
to
authority
contends that Wolfson had no
through fraud in
part,
or in
or came about
pro-
in 1974 to
orally modify the contract
here,
or,
because the
the inducement
hourly
compen-
rate of
vide for a different
authority in a
his
agent exceeded
debtor’s
sation,
not be bound
and Old Town should
creditor-payee,
then
to the
manner known
agreements
pay.
his
to
demanded
may
payment
attack
the debtor
by showing that
on the instrument
all,
note,
We
first of
the con
course and is
is not a holder in due
creditor
request
a written
require
tract did not
against one
subject
to defenses available
services; merely provided
it
course,
who is not a holder in due
such
writing.
additional services be authorized in
value,
notice of defens
taking without
Wolfson authorized all such services when
es,
See,
Bank
Community
or in bad faith.
approved
he
orders
the submitted
Ell,
(1977);
278 Or.
564
covering
and the
them.
bills
Wetmore,
Ill.App.3d
Estate of
(1976); Mecham v. United Bank
N.E.2d 224
W-V
court that be-
argued in the trial
Arizona,
489 P.2d
107 Ariz.
cause under
3—408 of
Uniform Com-
§
Morris,
(1971); Greenberg v.
436 S.W.2d
55-3-408, N.M.S.A., 1978)
(§
mercial Code
(Mo.1968).
necessary
no consideration is
instru-
given
payment
(who
ment that
of an. ante-
appeal
Unfortunately,
counsel
debt,
trial)
cedent
the court could not look behind
Town at
was not counsel for
deciding
any evidence other than
promissory
point
notes in
the claim failed to
out
Mr.
not favor-
given by
six answers
W-V.
partners,
exclusion of the limited
and he
theories,
pages
in the
appellant’s
able to
powers
broad
to com-
although we was endowed with
testimony; and
appellee’s
contractors,
plete
project,
of read-
hire
borrow
the arduous task
have undertaken
money,
powers
voluminous
all the
of a
and the
and exercise
ing the entire record
it,
to
New Mexico
general partner
we are unable
under the
Uni-
accompanying
exhibits
Town’s
supporting
Partnership
Limited
single
Partnership
find a
word
form
au-
produced
was without
contentions that Wolfson
Acts. There was no evidence
change orders
thority
approve
might
Old Town that
have shown that
W-V;
requests
Wolfson violated
of his contractual or
contract;
modify the
authority
without
partners, or
fiduciary duties to his limited
authority to execute the
without
he
A
beyond
authority.
acted
his
de-
notes;
value,
W-V,
by failure
nor that
present evi-
obligation
fendant has an
faith,
notice of defenses
good
or lack of
Laguna,
dence on his theories of defense.
notes,
not a holder in due
against
supra.
*4
course.
(3)
any
In the absence of
restriction
the trial court for three
We affirm
Town,
powers
represent
on Wolfson’s
(1)
offered no witnesses
reasons:
Old Town
though
required
and even
the contract
all
the “additional
prove
nor evidence to
that
writing,
modifications to be in
it
is the
actually
which W—V billed
services” for
that,
pro
in
a
general rule
the absence of
were “basic
under the
services”
statute,
hibiting
may
a written contract
be
deposi
Wolfson’s
architectural
contract.
who made the
orally
parties
modified
evidence;
in it he
tion was received in
original
v. Allstate Ins.
agreement, Canada
change order
testified
all of W-V’s
that
Co.,
and,
(5th
1969);
(2) testified that as Wolfson within is one enumerated partner of transaction itself general dent of Lobo frauds, Corbin, Contracts manage the the statute of authority to Freeway, he had Consequently, Wolfson construction, and the limited § W-V, modify Varsa, power had dep his agreement attached to partnership contract, they did so. original testimony. gener osition bore out that personal consider the urges us to daily given “control over partner al Wolfson, the cir- Varsa and relationship of to the partnership” business of the limited (Ct.App.1971); Svejcara v. Whit of the con- P.2d 1234 amendment cumstances (Ct.App. man, having negotiated been between tract N.M. 1971). ap- and without consultation or themselves partner other limited or cor- proval dissenting opinion urges officer, interest in Varsa’s business porate a claimed judgment should reduced Hijo’s corporation, billing W-V’s de- on the “kitchen overcharge $300.35 31, 1975 after claimed oral modifi- July contract, $2,948.40 plus well sign” $25.00; cation, instead of at hour interest, appellant represents which claims breached and to conclude the architect paid to already Varsa. a sum duty perform fiduciary the owner to a noted in the in its brief and as em- loyalty in the interest of his best dissent, request repay- argue did no fiduciary as did his ployer, Wolfson breach by Old ment of the was made general partner a to act in the best duty as of a in the trial court in the form partners. Old Town interest of his limited straightforward But the an- counterclaim. that, instead, Wolfson and Varsa suggests allegation overpayment swer to the contract fees at colluded to increase W-V’s it did simply requested was not that it thereby expense partners, Varsa a bill to Old not occur. committing upon fraud constructive %42,413.10 8, 1975, Town for on December Town. being charge one of the items that bill for additional services. presented These considerations were bill, clearly the fact Exhibit footnoted requested to the trial court the form billed, that of the amount two *5 so, Rightly were for findings, and denied. $36,910.76 $2,553.94, respec- for and dell, construction of a formance dard form contract Hijo. Varsa was Cyril Wolfson was his was taken the construction view the work done partner and Wolfson Varsa. On plaintiffs, were shareholders July of architectural services over Old Town later. 24, 1972, Freeway, by way of Wolfson, large a met director stepfather. hotel. entered into a stan- the contractor Varsa, Hotel, constantly This contract and officer. for the a During in the to Lobo per- re- and on behalf of [Emphasis added.] services and [Varsa] the Hotel Contract. pay the statement of not [Varsa] [$36,910.76]. 11. Both Wolfson and 13. 1975 [******] presently Subsequent to that Old agreed statement, *6 project representation have to Town . Wolfson each modification sufficient monies receiving the March Development did March advised . [Old 31, 1975 Town]. to to problems faced Old Town its debts. To Varsa, Old one for $2,553.94. At Town for the end of Varsa submitted $36,910.76 and the other After unpaid resolve the debts owed these approving construction, financial architectural two statements to in the amounts, services, to pay the additional [Varsa] statement 16. [******] presently have sufficient Subsequent to statement, that Old of June Town $2,553.94 9, Wolfson receiving the June Development did advised . billed money to on the Wolfson executed and delivered [******] necessary that consideration is cept no authority execute 18. Wolfson had given pay- . . . an instrument of Old promissory notes on behalf security an antecedent ment of or as Development. Nothing in this any kind. obligation of many conclusions made Among displace any be taken to section shall court, following pertinent: are which a this act under statute outside given 6. The notes were notwithstanding promise is enforceable no therefore debts and antecedent Partial or of consideration. lack failure proven. to be consideration needed pro is a defense failure of consideration valuable and ade- good, 7. There not the failure in an whether or tanto quate for the modifications consideration liquidated amount. ascertained or [Em- to the Hotel Contract phasis added.] point appeal: Old Town makes one that there was think Town contends I QUESTIONED TOTALLING ITEMS of consideration to partial a failure $23,528.75, IN TWO THE established, INCLUDED $23,528.75. this If extent $36,910.76, FOR NOTES OF 4/14/75 Thus the pro tanto defense. constitutes a precluded only THE NOTE 6/19/75 FOR recovery by AND OF Varsa would be $2,553.94, partial failure of con- HAVE BEEN DIS- extent SHOULD to the on Old Town to The burden is BY sideration. ALLOWED THE COURT. failure of consideration. partial establish fashion, point Town’s in this Stated Equitable Nat. Bank Credit Oklahoma me: means this to Co., (Okl.1971). Par- Finance *7 for hour $25.00 $15,935.35. was a Old Town claims there tax, 4%, $700.00, of at a New Mexico state totalling lack the of consideration for for a total of $23,528.75 a of architec- violation that is Old Town’s contention these It tural was no written contract because there are not in architectural services “additional authorization for the services billed. provided in the as fact additional services contract; re- they are basic services 3 of the Uniform Commercial Article contract; performed under the quired indi- be paper is Code relative commercial event, as services and in additional rectly involved. at the rate of in the contract are provided 55-3-408, of the Section N.M.S.A. 1978 hour, per hour. not $25.00 $15.00 Code reads: Uniform Commercial argument last and dis- agree I with this is a Want or failure of consideration sent on this issue. person having against any not defense course, provides: 2(b) a in due ex- of the contract rights of holder Section only testimony at trial was that of THE ARCHITECT’S ADDITION- FOR Paragraph AL as described in of Wolfson. None deposition SERVICES Varsa and 1.3, compensation computed follows: partners testified. One the four limited partners four was an attor- of the limited
Principals’ at rate time fixed represented Town. No archi- ney who ($15.00) per hour. FIFTEEN dollars dispute by tects were Old Town to called Agreement Article of the Architect’s for the claim for “Additional Services” part: reads at- which Old Town was liable. Strenuous amend- Agreement may . This argu- tempts by were Old Town in made signed by only by ed written instrument ment with Wolfson to color “Ad- Varsa and [Emphasis both Owner and Architect. paint of “Basic ditional Services” with added]. required under the contract. The Services” “only” To me the “exclusive- word means testimony and made trial court heard circumstances, ly,” regardless We do evaluate the the determination. signed by “written instrument both Owner difference between “Additional Services” Architect,” provi- is more strict than a dol- “Basic in a multi-million Services” amendment, except sion prohibiting an less project. lar I affirm reduction writing. agreement a standard This is $7,000.00 principal. provided protec- form Architects by for charge of item a disputed second tion of Architects. It was not intended beyond the for services additional allow of the architects to violate the terms this Although disputed, basic contract. protection. contract to hundred seek Seven by one of the actually paid item was hours were on services. At spent since Old partners. Varsa claims that $25.00, per hour rather than $15.00 repay- for Town did not file a counterclaim $7,000.00plus Town is entitled to a credit of sum, inappropriate for Old ment of this it is judg- on interest the total amount of the at a claim for relief Town to advance such ment. time; liti- charge was never this this place meaning The battle over the took raised the first gated and cannot be paragraph the contract “Ad- 1.3 of entitled appeal. Varsa time on This frivolous. ditional It reads: Services.” alacrity, at must not avoid following If of the Additional Serv- his I dissent grin least without on face. ices are IN authorized Owner $2,948.40 plus this issue. WRITING, they paid shall be judg- interest be reduced from the should provided. Owner as hereinbefore [Em- ment entered. phasis added.] The third item is one disputed language simply This if Old means guaranteed maxi- is in which excess permitted or allowed Varsa to render I design for the contract. mum kitchen Services,” pay. “Additional Old Town would dissent on this issue. Section 1.3 is followed with 21 subsec- item is one disputed The final “Change tions. Section 1.3.11 included Or- layout and consult- furniture ders . not commensurate with charges. is covered Section ant This One of the Architect.” and was not authorized 1.3.8 of “Change hundred and nine Orders” writing. I on this by Old Town in dissent writing Varsa in to the con- issue. tractor, signed by each them my opinion should judgment It is that the “Change Town and the contractor. The *8 be reduced the sum struc- permitted. Orders” were These were changes por- tural that affected substantial Hotel, scope and ordinary
tions of the expenditures. These
effect unusual in $17,500.00 plus a New amounted to
Mexico state tax of $700.00. two notes June on behalf Old executed Wolfson billings, of W—V’s to cover Adams, Foley, Adams & Albu- Quincy D. $39,464.70,plus W-V interest. aggregating defendants-appellants. querque, for bills addi- two more thereafter rendered by W-V under Campbell, Cherpelis performed Campbell, Lewis tional O. “Lobby Expan- (termed Pica, separate contract Albuquerque, plaintiffs-appel- & parties). At time by the sion” contract lees. provide that no con The UCC does billings lobby trial neither support given a note is needed to sideration paid. been nor the notes had debt. But a of an antecedent Wolfson had The trial court found that cases under this sec decided review of the services, approve additional authority to they follow Act indicates tion of the services, and to agree with W-V for such comment, accompa which also the official
Notes
notes
noted,
we have
Town failed to
Old
$39,-
“securing
tively, had been executed
present
any evidence on those issues.
due,
$2,948.40
leaving
464.70 of the balance
nothing
sup
There was
the court to
before
unsecured.” The exhibit further carries
and
that Var
port the claims
insinuations
handwriting
in Varsa’s
notation
by
Hijo
interest
in Lobo
was enhanced
sa’s
8,
balance
December
contract;
ex
the modified
that Wolfson
Thus,
the
partners.
one of
authority;
the
of his
ceeded
boundaries
$39, n 464.70
not included in the
it was
party
bad faith. More
that either
acted in
notes;
promissory
it
sued for under
and
fraud,
to show
than innuendo
in
was not included
billed and
Markets,
Stryker,
Inc. v.
Super
Barber’s
Lobby
allowed as
balance due on
(Ct.App.1972), and
N.M.
[******] managed he president of Lobo Town, agent for . Freeway offices of and Lobo 10. Wolfson was the en- authority Hijo. and had [Old Town] John Peter Varsa and Wallace A. Wen- ter into the agreements for additional
notes that the two Old Town asserts only goes to consideration tial failure of $39,464.70 composed items totalling are effect concedes recovery legal and in reduce per- allegedly represent that sustain the sufficient the consideration by Varsa. Town claims formed McGaha, Ala. note. Parker v. those items in certain of (1973). So.2d $23,528.75 not be allowed and should the antecedent determining In whether recovery be limited to Varsa should consideration, the “ante- debt is sufficient proven. An debt” itself must be cedent n $23,528.75 totalling which Old validity of must made into the inquiry questions are: to determine whether the antecedent debt . . Services Architectural a. Additional the debt. there was consideration for 2,948.40 Services............... b. Additional ar- first item is additional disputed 300.35 Design Contract........... c. Kitchen 2,080.00 Varsa of chitectural services ............... Layout d. Furniture Total orders, construction 109 items in of Old Town primary contention beyond agreement inspection services sup- question two notes in are not by job completion at spent and 700 hours ported debts in excess of by antecedent $17,500.00 and a total of