Allsup v. Space

• Decision Date: 21 December 1961
• Docket Number: No. 6763,6763
• Citation: 367 P.2d 531,1961 NMSC 175,69 N.M. 353
• Parties: Oliver ALLSUP and Josephine Allsup, his wife, Plaintiffs-Appellees, v. Jackson W. SPACE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 531

367 P.2d 531

69 N.M. 353

Oliver ALLSUP and Josephine Allsup, his wife Plaintiffs-Appellees, v. Jackson W. SPACE, Defendant-Appellant.

No. 6763.

Supreme Court of New Mexico.

Dec. 21, 1961.

Lyle E. Teutsch, Jr., Thomas A. Donnelly, Santa Fe, for appellant.

M. W. Hamilton, Santa Fe, for appellees.

CHAVEZ, Justice.

Plaintiffs-appellees, Oliver Allsup and Josephine Allsup, his wife, filed suit against defendant-appellant, Jackson W. Space, seeking damages for breach of an alleged oral contract, or in the alternative, for the reasonable value of appellees' services, including those rendered by their two minor children, Ilene and Robert. Appellees also sought the return of monies loaned appellant and title to a pickup truck registered in his name, for which appellees claimed to have furnished the consideration. The parties will be referred to as they appeared in the court below.

Plaintiffs alleged that defendant was the owner and operator of the Glorieta Pass Boys' Ranch, a summer recreation camp for boys and girls; that defendant proposed to plaintiffs that they come to defendant's ranch to assist in the care, maintenance and operation thereof, Josephine Allsup to do the cooking and housework, and the two minor children to wait on tables and perform other duties in connection with the operation of the ranch; that for said services defendant agreed to give plaintiffs one half of the profits from the 1959 season and one half of any livestock or other property purchased for the ranch during said period; that plaintiffs were to furnish groceries, not obtainable at the ranch, for themselves and defendant, and in return defendant was to supply fuel, water, electricity, a dwelling house, and pay to Robert $50 per month and to Ilene $75 per month; that plaintiffs loaned defendant $1000 and also expended the sum of $375 in the purchase of horses, saddles, and a pickup truck for the use of the ranch; that plaintiff, Oliver Allsup, performed services of the reasonable value of $3769. Plaintiffs further alleged that they performed their duties pursuant to the agreement from November 2, 1958, to about July 2, 1959, at which time defendant breached said contract, declaring its rescission. Plaintiffs prayed judgment in the total sum of $5696.90.

Defendant filed a motion to dismiss the complaint on various grounds. The trial court denied the motion upon plaintiffs' statement that their suit was based on quantum meruit.

Defendant's answer admitted that he was the owner and operator of the Glorieta Pass Boys' Ranch; that he proposed to plaintiffs that they come to the ranch, assist him in the operation thereof; plaintiffs to supply the groceries for themselves, their family and defendant, and defendant to furnish fuel, water, electricity and a house for plaintiffs. Defendant denied all other allegations of the complaint and asserted the following specific defenses:

(1) That plaintiff, Josephine Allsup, left the ranch about January 1, 1959, and did not return until about April 28, 1959.

(2) That plaintiffs were remiss in their duties and worked only sporadically.

(3) That the alleged loan was in fact not a loan but was used, as both parties intended, for the support of the Allsup family; that said funds were insufficient and that defendant was forced to borrow money to support plaintiffs' family during the winter months; that defendant was forced to work at various jobs for plaintiffs' support and his own, and that he used a monthly payment received from the federal government.

(4) That plaintiff, Oliver Allsup, did not labor continuously at the ranch but at various times worked on construction jobs.

(5) That plaintiffs' children were not made parties-plaintiffs nor joined in the action.

(6) That defendant was entitled to an offset in the amount of $2400 for fuel, water, electricity, meat, gasoline, use of an automobile, clothing, groceries, and a house furnished plaintiffs.

(7) That plaintiffs' quantum meruit claim was based on rates for skilled labor, whereas the labor performed was unskilled.

(8) That plaintiffs were engaged in marital discord after the return of Josephine Allsup in April, and their conduct was detrimental to the general atmosphere of the ranch, thus forcing defendant to request plaintiffs to move from his ranch.

(9) That defendant was entitled to an offset for monies sent to Josephine Allsup in the sum of $60, and $252.75 paid to Ilene Allsup.

Defendant also filed a counterclaim alleging that he purchased a pickup truck and a saddle which plaintiffs had wrongfully taken. Defendant claimed the sum of $3190.75 as an offset and counterclaim.

Plaintiffs answered the counterclaim asserting that they furnished the consideration for the pickup truck and that both parties understood and agreed that it was plaintiffs' property. Plaintiffs denied that they had wrongfully taken the truck or saddle. Plaintiffs admitted that defendant purchased the additional saddle but alleged that defendant had made a gift of it to Ilene Allsup.

The cause was tried without a jury and the trial court rendered judgment for plaintiffs in the sum of $4622.02.

The facts, briefly stated, are as follows: Plaintiffs, at defendant's request and pursuant to an oral agreement, moved to defendant's Glorieta Pass Boys' Ranch on November 1, 1958, to assist him in operating the ranch and youth camp. Oliver Allsup repaired fences, cut logs, rebuilt a cattle guard and barn, patched the roof, worked on the water system and corrals, and did general ranch chores. He was helped by his son, Robert. Oliver Allsup's usual occupation was as a construction worker, being what is known as a 'dozer man' and 'fine blade man.' He was a skilled laborer with an hourly rate of pay of $2.65. Because of urgent need of cash at the ranch, Oliver Allsup worked for several contractors. In the evenings and on weekends, Oliver Allsup did chores on the ranch such as feeding and caring for the horses and cows and taking care of the nutria, some water dwelling animals similar to a beaver. The evidence also shows that he worked approximately four hours a day in the mornings before going to work and in the evenings upon returning to the ranch. On days that Oliver Allsup worked at the ranch he would average eight to ten hours per day. A memorandum kept by Oliver Allsup shows that he worked about 1460 hours, or an average of 185 hours per month, for which he claimed $3769 at the rate of $2.65 per hour.

In January, 1959, Josephine Allsup and Robert went to Flagstaff, Arizona. She returned to the ranch the last of April and Robert returned about May 15th. During this period Oliver Allsup and Ilene remained at the ranch. During Josephine Allsup's absence, Ilene did the housework, consisting of washing, cooking, laundry and ironing, as well as the typing and bookkeeping. Ilene attended school in Santa Fe. During the camping season the entire Allsup family occupied themselves with the campers.

It also appears that after July 2, 1959, defendant employed a Mr. and Mrs. Mahoney to do the work at the ranch and they were paid $500 per month. Mrs. Mahoney testified that at least $300 of that sum was wages for her work as a cook. Mrs. Mahoney did none of the housework except to wash the dish towels and occasionally do defendant's personal laundry. Defendant paid someone $60 per month to do the housework. All employees received room and board in addition to their wages. During the camping season there were ten girls and twenty-five boys at the camp at different times. There is evidence that Josephine Allsup was a good housekeeper, even though Mrs. Mahoney testified concerning the poor condition of the kitchen after plaintiffs left the ranch. Josephine Allsup's claim was for only one month at the rate of $1.00 per hour, which is the wage defendant offered to pay her if she would return merely to cook for all at the camp.

There is testimony that from February to May defendant was away most of the time contacting prospective campers and traveling around for advertising purposes, and during this period when Oliver Allsup was not working with contractors he did most of the ranch work. From his work for contractors, Oliver Allsup earned $1036.25, all of which he gave to defendant to be spent on the ranch, or deposited in defendant's bank account. Defendant wrote all checks on said account. Late in May or early June, 1959, Oliver Allsup took his present construction job and retained his earnings. This, he claimed, was according to an agreement with defendant, since money was then coming in from camping deposits, fees and from the rental of horses.

Oliver Allsup testified that he also contributed $300 of his own funds from the sale of his Arizona property, and $490 in Unemployment checks, which with the sum of $1036.25 made a total of $1826.05 which he gave to defendant.

The evidence further shows that defendant, for two months, had not received any income. Defendant testified that he received a $653.66 government check for building two miles of fence, which money was used by defendant for the purchase of a 1954 pickup truck and for some burial lots in Mesa, Arizona; that he also received a pension check of about $68, and a Soil Conservation payment of about $250 to $300. One horse was purchased for $100. Several saddles were also purchased, including the new saddle claimed by Ilene as a gift.

There is a conflict in the evidence as to the ownership of the pickup truck, but defendant permitted plaintiffs to take the truck and one saddle when they left the ranch. There is a further conflict as to why plaintiffs were asked to leave the ranch. Defendant testified that he asked plaintiffs to leave the ranch because they were having family difficulties. Plaintiffs testified that defendant, without warning, asked them to move out within two days and said that he had decided to call off their arrangements. Oliver Allsup also testified that when defendant told them to...