ADAMS v. COX

• Decision Date: 15 March 1948
• Docket Number: No. 5063,5063
• Citation: 191 P.2d 352,52 N.M. 56
• Parties: ADAMS et al. v. COX.
• Court: New Mexico Supreme Court

52 N.M. 56

191 P.2d 352

ADAMS et al.

v.COX.

No. 5063.

Supreme Court of New Mexico.

March 15, 1948.

[191 P.2d 353, 52 N.M. 57]

Frazier & Quantius, of Roswell, for appellants.

A. B. Carpenter, of Roswell, for appellee.

McGHEE, Justice.

The plaintiffs appeal from an order dismissing their amended complaint seeking damages for the claimed breach of a contract to sell them the Lighthouse Laundry and two lots in Roswell, New Mexico.

The amended complaint, omitting the formal parts, reads:

'1. That the parties hereto are all residents of Chaves County, New Mexico.

'2. That heretofore on January 11th, 1947, the parties hereto entered into a certain written contract covering the sale and purchase of the Lighthouse Laundry and equipment and the real estate where said Lighthouse Laundry is located in the City of Roswell, New Mexico, as will more fully appear from copy thereof attached hereto, made a part hereof and marked Exhibit 'A'. As part of the sale agreement, it was verbally agreed between the parties that the $12500.00 to be paid in cash upon completionof abstract title, etc., was to be raised in part by a first mortgage upon the property being purchased by plaintiffs from defendant, which mortgage was to be in the sum of $7500.00 and that defendant was to be secured by a second mortgage for the sum of $7500.00 upon said property, payable as provided in Exhibit 'A'; that plaintiffs purchased said property for operation as co-partners.

'3. That in pursuance of said agreement the parties hereto arranged for the Equitable Building & Loan Association of Roswell, New Mexico, to loan to plaintiffs the sum of $7500.00, to be secured by first mortgage upon the property being purchased, it being further arranged that Irene Adams would sell certain real estate for the sum of $5000.00, thus making a total of $12500.00 in cash to be paid to defendant, pursuant to the contract, and defendant would be secured by a second mortgage on the property for the balance of $7500.00, as agreed; that Irene Adams did sell her said property for $5000.00, and thereafter the parties hereto met in the office of the Equitable Building & Loan Association on or about January 16th, 1947, ready to close the transaction and fully perform under their contract, but defendant thereafter refused to comply with his contract and agreement to accept a second mortgage covering the sum of $7500.00, to be payable at the rate of $200.00 per month, with 6% interest; thus breaching the contract and agreement; that defendant thereafter and subsequent to said breach, proposed a new arrangement with plaintiffs whereby $12500.00 would be paid to him in cash, and the blance secured by a first mortgage in his favor, well knowing that plaintiffs could not meet such requirements, and plaintiffs could not, and did not, agree to such new proposal.

'4. That by the acts and conduct of defendant, aforesaid, he is estopped to dispute his agreement and contract with plaintiffs.

'5. That on and about January 11th, 1947, the property involved was reasonably worth the sum of $22500.00, and plaintiffs have been damaged in the sum of $2500.00 as the direct and proximate result of defendant's refusal to perform his said obligations.

'6. That the net income from the property being purchased on January 11th, 1947, and thereafter, was, and is, the sum of $1000.00 per month; that plaintiffs were ready, willing and able to comply with their purchase agreements, and take possession of the property on or about January 16th, 1947, and as the direct and proximate result of defendant's failure to perform his said obligations they have been damaged in the sum of $1000.00 per month beginning with January 16th, 1947.

'7. That plaintiffs incurred expense of $25.00 in order to procure the loan from the Equitable Building & Loan Association, and are proximately damaged in said sum by defendant's failure and refusal to perform.'

Second Cause of Action

'1. She adopts Paragraphs 1, 2, 3 and 4 of the First Cause of Action, by reference as fully and effectively as if set forth in the second cause of action in full.

'2. That plaintiff, Irene Adams, borrowed the sum of $200.00 from the First National Bank of Roswell to make the escrow payment provided by the contract, and became obligated to pay interest at 8% per annum thereon from January 11th, 1947, to her damage in the sum of $4.00 due to defendant's failure to perform as aforesaid.

'3. That plaintiff, Irene Adams, in haste and sacrifice, sold property of the reasonable value of $6000.00 for the sum of $5000.00, in order to carry out her contract with defendant, and thereby sustained damages in the sum of $1000.00 as the direct and proximate result of defendant's refusal to perform as aforesaid; that defendant well knew that she was making such sale in order to raise the funds required by the purchase agreement.'

Exhibit 'A' (To Complaint)

Wayne Adams Real Estate

Farms-Ranches-Homes Roswell, New Mexico Escrow Contract

'1. Contract Agreement--

I or we Virgil Adams hereby agree to purchase from P. H. Cox under the terms of this contract the following describedproperty-Lighthouse Laundry with all equipment complete together with two city lots 100 x 168 ft.

'2. Down Payment $200.

'3. Total Payment $20000.

'4. Terms $12500. upon completion of abstract title, etc. balance paid at rate of $200. per month until paid in full.

'5. Interest rate 6%

'6. Taxes, Rent Etc. Bills paid up in full upon possession.

'7. Date of Possession Upon approval of abstract title & deed by purchasers.

'8. Real Estate Commission-Sellers agree to pay usual commission from earnest money or money derived from this sale.

'9. Mineral & Water Rights * * *

'10. Remarks * * *

Seller /s/ Perry H. Cox

Buyer /s/ Irene Adams

Buyer /s/ Virgil Adams

Escrow Agent /s/ Wayne Adams

Buyer /s/ Bill Adams

Date Jan. 11, 1947'

The motion to dismiss states the following grounds:

Motion to Dismiss

'(1) That said complaint, together with the exhibit attached thereto, shows on its face that the plaintiffs have not set out facts sufficient to entitle them to any relief as against this defendant.

'(2) That said complaint seeks to set up a breach of a verbal agreement to sell real estate, on which complaint the plaintiffs are entitled to no relief at law.

'(3) That there is a misjoinder of causes of action, one of which all three plaintiffs claim to have an interest and a common cause, as set forth in the first cause of action and in the second cause of action, in which only one of the plaintiffs have any right or claim as against this defendant, and, therefore, constituting a misjoinder of the parties plaintiff as to the second cause of action and a misjoinder of causes of action as to the entire Amended Complaint.

'(4) For the further reason that the purported written contract sued on is insufficient and does not contain the elements necessary and vital to a valid and enforceable contract, and, by reason thereof, no cause of action can be based thereon and same is unenforceable.

'(5) For the further reason that the plaintiffs wholly fail to set out any breach or violation of the written agreement in their amended complaint.'

The order sustaining the motion to dismiss did not specify the paragraphs the court believed good, but from the briefs we take it the action was based on the matters hereafter discussed.

We begin our consideration of this case mindful of the rule in Ritter v. Albuquerque Gas & Electric Co., 47 N.M. 329, 142 P.2d 919, 153 A.L.R. 273, that a motion to dismiss is properly granted only when it appears that under no state of facts provable under the claim could plaintiffs recover or be entitled to relief.

Tested by this rule, we are of the opinion that the action of the court as to the second cause of action was correct. The appellants say nothing in its behalf in their briefs.

It is stated in the brief of appellee that the amended complaint fails to state a cause of action for the reasons:

(a) That the contract was partly in writing and partly oral, and that it is not alleged that there was any consideration for the making of the contract.

It is true that in Flores v. Baca, 25 N.M. 424, 184 P. 532, it is held that where parol evidence is required to complete the contract it is to be regarded as an oral or verbal contract, and that the pleader must allege a consideration in order to state a cause of action. That case, however, cannot control here for it is stated in Exhibit A that there was a down payment of $200.00. The appellee seeks to destroy that fact because of the allegation in the second cause of action that one of the appellants borrowed $200.00 to put in escrow, and he says it is thus established that such payment was not made. In the event of a variance between the allegations and the exhibits the latter control. Titsworth Co. v. Analla, 25 N.M. 628, 186 P. 1079; Farmers' Cotton Finance Corporation v. Green, 35 N.M. 84, 290 P. 739;Town of Farmington v. Mumma, 35 N.M. 114, 291 P. 290. This point is ruled against the appellee.

Is the written memorandum, Exhibit A, sufficient under the Statute of Frauds?

A written memorandum must contain a sufficient description of the land, or furnish the means or data within itself which points to evidence that will identify it. Pitek v. McGuire, et al., 51 N.M. 364, 184 P.2d 647, 655, and cases therein cited.

The principal attack upon the memorandum by the appellee is the claimed insufficiency of the description 'Lighthouse Laundry with all equipment complete, together with two city lots 100 by 168 feet.' The memorandum does not state by its terms the city, county or state where the property is located.

The annotator in 68 A.L.R. 59 says: 'Whenever land is described by a particular name or designation, such as 'home farm,' 'mill spot,' 'the A. Place,' etc., it appears to be uniformly held that land evidence is admissible to show what land is so designated, and thus to identify the tract intended to be conveyed.'

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