Byerts v. Schmidt.

• Decision Date: 07 April 1919
• Docket Number: No. 2187.,2187.
• Citation: 25 N.M. 219,180 P. 284
• Parties: BYERTSv.SCHMIDT.
• Court: New Mexico Supreme Court

25 N.M. 219

180 P. 284

BYERTS

v.SCHMIDT.

No. 2187.

Supreme Court of New Mexico.

April 7, 1919.

Syllabus by the Court.

Findings of fact by a trial court will not be disturbed where supported by substantial evidence, and where the trial court heard the testimony and saw the witnesses.

Where a special finding is silent on any material point, it is deemed to be found against the one having the burden of proof.

Where a real estate broker is the procuring cause of a sale of real estate by his principal, he is entitled to the compensation agreed upon, notwithstanding the fact that he did not disclose the name of the prospective purchaser to his principal, if the principal was not prejudiced by such nondisclosure.

Appeal from District Court, Socorro County; R. R. Ryan, Judge.

Action by W. H. Byerts against Franz Schmidt and Esther Schmidt, his wife. Judgment for defendant Esther Schmidt and in favor of plaintiff against defendant Franz Schmidt, and he appeals. Affirmed.

Failure to find a material fact must be regarded as a finding against the party having the burden of establishing such fact.

Nicholas & Nicholas, of Socorro, for appellant.

Bray & Bunton, of Socorro, for appellee.

ROBERTS, J.

Appellee sued appellant and Esther Schmidt, his wife, for a commission for the sale of certain real estate. The complaint was in the ordinary form, alleged the employment of appellee to procure a purchaser for the real estate described, and that under the agreement between the parties it was agreed that if appellee should find a purchaser for said property, or any portion thereof, appellee was to receive a commission equal to 10 per cent. of the selling price received by defendants from such purchaser; that appellee had complied with his part of the contract and had furnished a purchaser; and that a sale had been consummated of certain real estate for $15,000. Appellee and his wife, in their answer, admitted the sale of the property to the parties named in the complaint, but denied all the other allegations therein.

The case was tried by the court without a jury. Findings of fact were made and conclusions of law stated. The court found that Esther Schmidt was not a party to the contract and was not liable thereon, and judgment went in her favor. Appellee had judgment against appellant for $1,500, to review which this appeal is prosecuted.

Appellant relies upon two questions for a reversal which will be considered in the order discussed in his brief. First, he contends that there was no substantial evidence supporting the findings and judgment, and that the court should have sustained his motion for judgment at the conclusion of appellee's case in chief and a similar motion made when all the evidence was in. There is no merit in this contention. Appellant testified to the making of the contract by which he was to receive a commission of 10 per cent. of the purchase price in the event appellant sold less than the entire ranch property. If the entire property were sold, appellant was to receive $20,000 therefor net. After the making of the contract, appellee advertised in the El Paso papers and interested the firm of Davis-Snyder Company of El Paso, Tex., in the property. He visited El Paso and saw Mr. Davis, and Mr. Davis called up Mr. Snyder at Alamogordo while appellee was in the office, and arranged for him to visit the appellant and negotiate for the property, if found to be satisfactory. Less than the whole of the property was sold to the Davis-Snyder people for $15,000. It is true that appellant, in his testimony, disagreed with appellee as to the terms of the contract; but the trial court elected to believe appellee. It has been so often held by this court that findings of fact by a trial court will not be disturbed where supported by substantial evidence, and where the trial court heard the testimony and saw the witnesses, that citation of authority is unnecessary. There was substantial evidence supporting the findings in this case; hence there was no error committed by the court in overruling appellant's motions for judgment.

It is next urged that the facts found by the court, conceding that those facts found support the evidence, are not sufficient to sustain the conclusions of law drawn by the court and the judgment rendered. This contention is based upon certain findings made by the court at the request of appellant. The court approved finding numbered 12, to the effect that the proof did not show that the plaintiff ever introduced any prospective purchaser of the said property to the defendant, either personally or by letter; and findings of fact numbered 5 and 6, to the effect that at the time of the sale by the defendant to the Davis-Snyder Company, John Snyder, a member of the company, with whom defendant negotiated said sale, did not know as a fact that the plaintiff had had anything to do with the sale, and, upon his being asked by the defendant if he had been sent by app...