Cassell Motor Co. v. Gonzales.

• Decision Date: 11 February 1924
• Docket Number: No. 2959.,2959.
• Citation: 255 P. 636,32 N.M. 259
• Parties: CASSELL MOTOR CO.v.GONZALES.
• Court: New Mexico Supreme Court

32 N.M. 259

255 P. 636

CASSELL MOTOR CO.

v.GONZALES.

No. 2959.

Supreme Court of New Mexico.

Feb. 11, 1924.

Syllabus by the Court.

Plaintiff sued upon account. Defendant set up counterclaim sounding in tort. Such counterclaim is not available, under section 4116, Code 1915.

Where the trial court has placed a reasonable construction on a pleading, whose averments are susceptible of two constructions, the appellate court will be inclined to adhere to the construction given to the pleading by the trial court.

Appellant cannot, in the appellate court, shift the grounds upon which his demand proceeds and having treated it as a tort, such demand cannot on appeal be sustained on the theory that it was good as arising on contract.

Upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the decision of the court below.

Appeal from District Court, Santa Fé, County, Holloman, Judge.

Suit by the Cassell Motor Company against David Gonzales on an open account. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 238 P. 1070.

Plaintiff sued upon account. Defendant set up counterclaim sounding in tort. Such counterclaim is not available, under section 4116, Code 1915.

E. P. Davies, of Santa Fé, and J. T. Vocelle of Vero, Fla., for appellant.

Renehan & Gilbert, of Santa Fé, for appellee.

BICKLEY, J.

[1] A suit was brought by appellee (plaintiff) upon an open account for gasoline and supplies furnished appellant and for repairs upon appellant's automobile. The original answer of appellant does not appear in the record, but presumably it presented some counterclaim based upon an alleged oral contract growing out of the purchase of a Nash car, for we find in the amended reply of appellant an allegation that the contract set forth in defendant's counterclaim was reduced to writing and a copy of such writing attached to the amended reply. Appellant thereupon filed a pleading, denominated “Amended Answer to the Complaint and to the Reply.” Paragraph 9 thereof sets out that the plaintiff received from defendant the sum of $300 in connection with the purchase price of an automobile with the understanding and agreement that the sum of $300 would be repaid to defendant in the event the price of the automobile of that particular make was lowered by the manufacturers of said cars within a year subsequent to the date of the agreement; that the price of said cars was lowered more than $300 within the designated time, but defendant had failed and refused to return or repay the said $300 to the defendant. We suspect that this was a counterclaim pleaded in the original answer, for in plaintiff's amended reply it is alleged, by way of further reply to paragraph 9 of defendant's answer and further answer to the counterclaim in said paragraph contained, that the parties reduced their contract made and entered into at the time of the purchase of said automobile referred to in said paragraph of the answer to writing, which writing embraced all the terms of said contract and was in words and figures as set forth in Exhibit A attached to the amended reply. After this amended reply was filed, the defendant filed his amended answer to the complaint and to the reply, in which apparently paragraph 11 comes in as supplemental to the allegations made in paragraph 9. Said paragraph 11 alleges that the written contract set up in the amended reply did not embrace all the terms of the contract entered into between the parties, and that said contract is null and void and of no effect for the reason that it was obtained by fraud on the part of the plaintiff and the signature of the defendant thereto procured by fraud of the plaintiff, and that the promises of the plaintiff described in paragraph 9 aforesaid was the sole and procuring cause of defendant executing said written contract; that defendant would not have executed same had he not relied upon the representations of the plaintiff that he would be given the benefit of the reduction in price aforesaid; that the representations made by plaintiff at the time said written contract was prepared and before the signing thereof were false and fraudulent for the reason that plaintiff, at the time such representations were made, well knew that it had no idea or intention of giving defendant the benefit of the reduction in price of said automobile; and further alleges that said contract was procured by fraud on the part of the plaintiff and should be declared null and void. The defendant prayed that the court decree said contract null and void by reason of fraud in the procurement thereof; that the complaint be dismissed; and that plaintiff have and recover on his counterclaim. The court ruled that no evidence could be introduced upon the counterclaim alleged in said paragraphs 9 and 11, holding that:

“The defendant will not be permitted to go into that question or introduce any evidence whatever, for the reason that it is not a proper counterclaim in this action, in that, in the first place, it has no proper place in this action by reason of its nature, and, in the second place, it is admitted that a written contract existed covering the sale of the automobile, and there are no facts alleged in the answer sufficient to justify the court in not holding the written contract binding as written.”

The defendant offered to prove the matters set forth in paragraph 9 and 11 of the amended answer and counterclaim. He further offered to prove that the defendant...