Allied Bldg. Credits, Inc. v. Koff

• Citation: 70 N.M. 343,373 P.2d 914,1962 NMSC 74
• Decision Date: 06 June 1962
• Docket Number: No. 7047,7047
• Parties: ALLIED BUILDING CREDITS, INC., Plaintiff-Appellant, v. Alan KOFF, d/b/a Southwest Supply Company, Defendant-Appellee.
• Court: Supreme Court of New Mexico

Page 914

373 P.2d 914

70 N.M. 343

ALLIED BUILDING CREDITS, INC., Plaintiff-Appellant, v. Alan KOFF, d/b/a Southwest Supply Company,

Defendant-Appellee.

No. 7047.

Supreme Court of New Mexico.

June 6, 1962.

Rehearing Denied Aug. 23, 1962.

R. Deane Moyer, Albuquerque, for appellant.

LaFel E. Oman, Garnett R. Burks, Jr., Las Cruces, for appellee.

COMPTON, Chief Justice.

The question presented by this appeal is whether the action was rightly terminated by a summary judgment of dismissal.

The action is one to recover the balance allegedly due on a promissory note in the principal sum of $4,129.92, executed by Harold Kotzker and Minnie Kotzker, his wife, made payable to Southwest Supply Company and endorsed to the appellant. The endorsement reads:

'Without recourse pay to the order of Allied Building Credits, Inc. Without limitation to implied warranties, endorser specifically warrants that all articles and materials have been furnished and installed and all work fully completed, which constitute the entire consideration for which this note was executed and delivered by maker.

'SOUTHWEST SUPPLY COMPANY

Seller

By s/s Alan Koff

Owner'

Default having been made by the makers of the note, the appellant sought judgment against the appellee on its warranty. The complaint alleges that the articles and materials had not been furnished, installed, and the work completed as represented when appellee endorsed the note, and that relying thereon, and being deceived thereby, appellant was induced to purchase the note. Appellee's answer admitted the endorsement but specifically alleged that the note was taken by appellee, endorsed and delivered to the appellant pursuant to an oral understanding and agreement that the appellee's endorsement was without recourse.

C. A. Mayer is manager of Allied Building Credits, Inc., and Alan Koff is the owner of Southwest Supply Company. Utilizing Section 21-1-1(33), 1953 Comp., our Rules of Civil Procedure, certain interrogatories were answered by each of the parties, and following which the court granted summary judgment. The ruling of the court is here on appeal for the review of alleged errors.

The appellee was requested to answer the following question:

'9. Please state in detail, if there were any, all of the agreements, contracts and arrangements in connection with the negotiating of the promissory note as reflected by Exhibit 'A' to Allied Building Credits, Inc., and the name of the individual with which they were made?

'Answer: The note was signed by me and delivered to the plaintiff, as already stated, pursuant to an arrangement and understanding with the plaintiff. I was introduced to Mr. Harold Kotzker and his wife, Minnie Kotzker, by the Lordsburg, New Mexico Commissioner of Police, Mr. James L. Smith, who had known them for many years. They were referred to by Mr. Smith as extremely reliable and dependable people. Shortly thereafter Mr. Kotzker, publisher of a Deming newspaper, contacted me and solicited my assistance in securing a loan for the purpose of making certain improvements to his property in Deming, New Mexico. He stated that due to the nature of his business in Deming he was extremely reluctant to deal with one of the several Deming firms making building improvement and repair loans. He further stated that if he could secure the loan through me in Lordsburg he could then spend the money from such loan in such proportions as he desired with the several building material firms in Deming, who did advertising through his newspaper.

'I stated I would get in touch with the Albuquerque, New Mexico, office of Allied Building Credits, Inc. and ascertain if it wished to handle a loan to Mr. and Mrs. Kotzker in this manner. (Emphasis ours.)

'On February 12, 1959 I telephoned Mr. C. A. Mayer in the Allied Building Credits, Inc. Office at Albuquerque, and explained to him in detail what Mr. Kotzker had told me and asked if Allied Building Credits, Inc. desired to make the loan. I was told by Mr. Mayer that if credit report on Mr. and Mrs. Kotzker was satisfactory that I should proceed and that Allied Building Credits, Inc. would be glad to handle the loan as outlined.

'I thereupon requested a credit report from the Credit Bureau of...