BELL v. LAMMON
| Decision Date | 14 April 1947 |
| Docket Number | No. 4995,4995 |
| Citation | 179 P.2d 757,51 N.M. 113 |
| Parties | BELL v. LAMMON. |
| Court | New Mexico Supreme Court |
Otto Smith and L. G. Skarda, both of Clovis, for appellant.
James J. McNamara, of Clovis, for appellee.
The appellee was given judgment for money paid to appellant as part of the purchase price of real estate and a packageliquor store. We will refer to the parties as they appeared below.
The defendant was the owner of some lots and a building in Taiban, New Mexico, in which he operated a package liquor store under a state license. The plaintiff had worked as a liquor salesman for between four and five years for Ilfeld & Company, wholesale liquor dealers, and had later owned and operated a retail liquor establishmentin Clovis, New Mexico. On June 1, 1945, he came to the defendant's liquor store and asked if it was for sale and on being told that it was he took a pencil and paper and spent between one and two hours in the storeroom checking the stock. On his return from the stock room he and the defendant soon agreed upon a sale of the lots, building, fixtures and stock and went to Fort Summer where Keith W. Edwards, an able and reputable member of the bar, acting for both parties, prepared and they signed the following contract:
'This Contract, Made and Entered into by and between Harry V. Lammon, of Taiban, New Mexico, party of the first part, and Tony G. Bell, of Clovis, New Mexico, party of the second part,
'1. That the party of the first part agrees to sell and the party of the second part to buy the following described real and personal property, to-wit:
'Lots one and two in block nineteen of the Lindsey-Oldham Addition to Tailban, within the County of De Baca and State of New Mexico, together with all of the fixtures and equipment in the dwelling on said premises, including the cash register, frigidaire, etc., and the well, windmill, storage tank, electric plant and all other equipment on the said premises, it being understood that the first party is to remove only his purely personal effects and the bed and other personal property.
'All of the beer, whiskey, wine and other liquors, gin, etc. and etc., constituting the stock of goods and merchandise now in the said dwelling, which is being used as a package house and in which the first party is now doing business, together with the good will of the business of retailing beer, wines, whiskey, etc.
'One (1) Dodge truck (pick-up)
'One (1) certain contract between the first party and the Duke City Wine Company, of Alburquerque, New Mexico, for delivery of certain liquors under the terms and conditions thereof, and on which said contract the first party has paid a deposit of $3600.00 to the said Duke City Wine Company.
'2. That the first party shall furnish a properly certified abstract, showing a merchantable title in fee simple in said first party, free and clear of all liens and encumbrances, with taxes paid to and including 1944, which said abstract shall be paid for by first party and become the property of the second party upon payment by him of the second party upon payment by him estate hereinafter described. That the second party shall have a reasonable time within which to cure any objections to the title properly raised by the second party. That the purchase price of said real estate shall be the sum of Five Thousand ($5000.00) Dollars, payable as follows: $1500.00 in cash and a promissory note in the sum of $3500.00, payable on or before the 1st dayof June, 1946, secured by a mortgage deed back on said real estate, for and in consideration of which the first party agrees to deliver to the second party a good and sufficient warranty deed, executed by said first party and his wife, running to the second party, the said cash payment and note and mortgage to be delivered to the first party upon acceptance of said real estate, and upon tender of said cash, note and mortgage deed, the said first party shall deliver the said deed, the delivery of said cash, note and mortgage and the said deed to be simultaneous acts.
'3. That the purchase price of the stock of beer, wines, whiskey, gin and all other liquors, etc., shall be such sum as may aggregate the invoice price thereof on the 3rd day of June, 1945, when the said parties are to inventory said stock, and such sum shall be paid in cash when the said inventory is completed, when and whereupon the second party is to take possession of the premises and the said stock.
'4. That the said Dodge truck (pick-up) shall be delivered when the said inventory of the stock is completed and shall be paidfor in the amount and at the time to be later agreed upon by and between the parties hereto.
'5. That the said contract between the first party and the said Duke City Wine Company shall be assigned to the second party upon payment by him to the first party of the said sum of $3600.00, being the amount heretofore paid by the first party to the said company, it being agreed that the parties hereto will go to Albuquerque and complete the payment of the said $3600.00 to the first party.
'6. That the party of the second part agrees to pay to the party of the first part upon the execution of this contract the sum of $3000.00, to bind the bargain and to be retained by the first party as part payment on the stock of liquors, beer, wine, whiskey, etc.
'7. It is agreed by and between the parties hereto that time is of the essence of this contract and that all things to be done hereunder shall be done promptly and in an expeditious manner.
'8. This contract shall extend to and be binding upon the heirs, executors, administrators and assigns of the parties hereto.
'In Witness Whereof, the parties hereto have hereunto set their hands on this 1st day of June, A.D., 1945.
'(Signed) Harry V. Lammon
'(Signed) Tony G. Bell
'Witnesses:
'G. W. Heisel'
The plaintiff immediately made the $3,000 down payment as provided. They met at the store on Sunday, June 3, 1945, and with the assistance of two others spent the day taking inventory and extending the prices, although the final computations werenot completed for two or three days. The inventory value was approximately $25,000. At the completion of taking the inventory on June 3 the plaintiff made the second payment of $3,000, took possession of the store, and arranged for a Mr. Baker to continue as the salesman. On the next Wednesday plaintiff and defendant went to Albuquerque in the Dodge truck where they called at various wholesale houses and informed them of the sale and the plaintiff, according to the defendant's testimony, purchased additional stock amounting to $788, which was sent to the store by a truck line company and paid for by plaintiff while the defendant says it was a regullar shipment made to defendant. The plaintiff had stopped at the store Wednesday morning and received $766 from the salesman Baker, which was the receipts for two days business.
After learning that the stock totalled approximately $25,000, the plaintiff refused to make further payments, abandoned the store and filed suit on August 27, 1945, to recover the $6,000. No transfer of the license had been made by defendant pending final payment and the execution and delivery of the mortgage on the real estate.
The plaintiff bases his action on his claim that he advised the defendant he had only $8,000 and the statement of the defendant that such sum would be sufficient to make all cash outlays called for by the contract, and that the defendant wilfully and maliciously concealed the value of the stock. He also pleads mutual mistake, that there was no meeting of the minds and failure of consideration.
The trial court found the facts for him on all counts, and in conclusion of law No. 1 held: 'That said agreement, resting partly in writing and partly in parol does not violate the parol evidence rule.'
The defendant assigns error on the admission of parol evidence to show a representation that $8,000 would be sufficient to make the cash payments, and the plaintiff answers that such evidence was admissible, but in any event its admission and consideration is not available as grounds of error as it was not raised below. An examination of the record shows that the defendant's attorney in his opening statement said: ...
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...would contradict the written promises, or because the oral promises relate to the subject of the written documents. Bell v. Lammon, 51 N.M. 113, 179 P.2d 757 (1947); Alford v. Rowell, 44 N.M. 392, 103 P.2d 119 A motion was made on March 27, 1980, in chambers by counsel for Gannett to limit ......
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