Carruth v. Valley Mercantile & Banking Co.

• Decision Date: 07 February 1928
• Docket Number: No. 3037.,3037.
• Court: New Mexico Supreme Court
• Parties: DAVIS & CARRUTHv.VALLEY MERCANTILE & BANKING CO. et al.

33 N.M. 295

265 P. 35

DAVIS & CARRUTH

v.VALLEY MERCANTILE & BANKING CO. et al.

No. 3037.

Supreme Court of New Mexico.

Feb. 7, 1928.Rehearing Denied March 15, 1928.

Syllabus by the Court.

The verdict of a jury and the judgment rendered thereon will not be disturbed on appeal, where there is any substantial evidence to support it.

Where alleged improper remarks of counsel are not embraced in the bill of exceptions, they cannot be considered on appeal.

With respect to orders of dismissal, nonsuit, demurrer to evidence, or direction of verdicts, the rule is well settled that the review of appeals from such orders, after evidence submitted, requires the appellate court to assume that all of the evidence before the court which tends to establish the plaintiffs' case is true, with all reasonable inferences to be drawn therefrom, and to view such evidence in the aspect most favorable to the plaintiff.

Evidence examined, and held, that the trial court erred in dismissing cause as to one of the defendants at close of evidence for plaintiffs and in refusing to reinstate said cause as to said defendant at the close of defendant's testimony.

Appeal from District Court, Doña Ana County; Ed Mechem, Judge.

Action by Davis & Carruth, a copartnership, against the Valley Mercantile & Banking Company, Ruth Livesay, and another. From a judgment dismissing the action as to defendant Ruth Livesay and in favor of defendant the Valley Mercantile & Banking Company, plaintiffs appeal. Judgment as to defendant the Valley Mercantile & Banking Company affirmed, and judgment as to defendant Ruth Livesay reversed, and cause remanded, with directions.

On appeal from orders of dismissal or nonsuit, appellate court must view evidence most favorably to plaintiff and assume truth of all evidence tending to establish plaintiffs' case and all reasonable inferences therefrom.

E. D. Tittmann and Waters Davis, both of El Paso, Tex., for appellants.

Holt & Sutherland, of Las Cruces, for appellees.

BICKLEY, J.

This suit was brought by plaintiffs (appellants) against Frank Boyer, the Valley Mercantile & Banking Company (hereinafter called company), and Ruth Livesay, to recover damages for breach of contract.

Plaintiffs alleged, among other things, that Boyer was indebted to said company, and in order to protect it against loss through possible decline of the market, defendant Livesay, as its agent, procured plaintiffs to enter into a contract to buy 20 bales of Boyer's cotton, which 20 bales of cotton plaintiffs themselves sold and bound themselves to deliver to the Southern Products Company; that the market value of cotton advanced, and said cotton was not delivered to plaintiffs, but that defendants company and Livesay caused same to be sold and delivered to others, and the proceeds of sale therefrom to be applied upon Boyer's debt to said company, so that plaintiffs had to deliver to said Southern Products Company 20 bales of cotton in lieu of the Boyer cotton of the market value of $3,725, to their damage in the sum of $1,725.

Plaintiffs further allege that, upon procuring them to enter into said contract, defendant Livesay promised them that said company would guarantee the performance thereof by said Boyer, but that she thereafter represented to plaintiffs that said company could not in its corporate name guarantee said contract, but that she would sign the written guarantee, and that she did sign same in her individual capacity, so that she individually and the said company were both bound thereby. Upon the trial of the case, after the plaintiffs had introduced their testimony and rested, a motion was presented for judgment in favor of the defendant Ruth Livesay. The court's ruling was as follows:

“I will grant the motion for judgment for her on the ground that the evidence does not show that she signed the contract in her individual capacity, but as agent for the bank.”

The defendant company also made a motion for judgment in favor of it, which was overruled by the court. The plaintiffs also requested the court to instruct the jury to find for them, which motion was overruled. The court then instructed the jury as to what had transpired as a result of said motions as follows:

“Gentlemen of the jury, this case as originally brought and tried up to this time was an action by the plaintiff with two separate counts, one seeking to recover against Miss Livesay and the other one seeking to recover against the Valley Mercantile & Banking Company; and, as to the case against Miss Livesay, that case has been taken care of by the court, and, so far as you are now concerned, the case will go on as against the Valley Mercantile & Banking Company.”

Thereupon the defendant company, to maintain the issues on its part, offered its evidence.

At the close of defendant's testimony, the plaintiffs moved the court to withdraw its action theretofore taken with respect to the dismissal of the cause as to the defendant Ruth Livesay and to reinstate her as a defendant, upon the grounds, among others, that, under the testimony offered by defendants subsequent to the dismissal by the court of plaintiffs' action as to said Ruth Livesay, facts and circumstances had been shown from which it was further made to appear that said defendant Ruth Livesay was liable for damages claimed by plaintiffs under her alleged individual guarantee, and that the determination of the conclusions to be drawn from the facts and the inferences following same point to the liability of the said defendant Ruth Livesay, and were issues that should be determined by the jury. This motion of the plaintiffs was overruled. The court then directed a verdict against the defendant Boyer, he having defaulted and failed to defend.

The jury, then having only the issue of liability of the company submitted to them, found in favor of said defendant company, upon which verdict, judgment being entered, plaintiffs appealed.

[1] The following are facts which seem to be undisputed, or are inferable from the evidence: Defendant Livesay was secretary and cashier of defendant company. Boyer was indebted to defendant company. That through said Livesay, one or both of said defendants, Livesay or company, caused plaintiffs and Boyer to enter into a contract by which Boyer bound himself to deliver to them, at 20 cents a pound, 20 bales of cotton, to be clear of all liens and incumbrances, and to be from his first cotton ginned, the $2,000 coming to Boyer from said cotton to be deposited with the company, in satisfaction of Boyer's debt. That defendant Livesay further agreed with plaintiffs that she would personally get said cotton and deliver it to them. The market price of cotton increased. None of the cotton was delivered to plaintiffs. The defendant Livesay and the defendant company, by court proceedings and otherwise, caused the Boyer cotton to be sold and delivered to others, and the proceeds thereof to be applied on Boyer's debt to said company. That plaintiffs, who had bound themselves to do so, delivered to Southern Products Company 20 bales in lieu of the Boyer cotton, of the market value of $3,725.

The important conflict was upon the question as to the effect of the signature of the defendant Livesay to the written guarantee, taken in connection with the other evidence. The said Livesay testified that she signed said written guarantee as plaintiffs' partner and agent, at their request, and for their benefit, without intending to either bind herself or the company by her signature. From a portion of her testimony, other inferences might be drawn. On the other hand, the plaintiffs' testimony tended to show that the defendant Livesay sought by the transaction to benefit the company, and, for that reason, guaranteed the contract; she claiming, however, that she signed it in her individual capacity, for the reason given that the company could not sign it. A portion of the testimony of the defendant Livesay bears out the contention of the plaintiffs that she individually guaranteed the performance of the contract on the part of Boyer, she entering into the said guarantee...