Chavez v. Potter

• Decision Date: 06 August 1954
• Docket Number: No. 5741,5741
• Citation: 58 N.M. 662,1954 NMSC 75,274 P.2d 308
• Parties: CHAVEZ v. POTTER.
• Court: New Mexico Supreme Court

Page 308

274 P.2d 308

58 N.M. 662

CHAVEZ v. POTTER.

No. 5741.

Supreme Court of New Mexico.

Aug. 6, 1954.

Rehearing Denied Oct. 7, 1954.

W. A. Sutherland, Las Cruces, for appellant.

Whatley & Oman and W. B. Darden, Las Cruces, for appellee.

LUJAN, Justice.

From a judgment rendered against him in the district court for the county of Dona Ana, the plaintiff, Felipe Chavez, has perfected this appeal. The parties will be referred to as they appeared in the lower court.

The complaint alleged in substance and effect that plaintiff and defendant, J. V. Potter, on or about August 2, 1942, entered into a verbal contract by the terms of which defendant agreed to turn over the possession of certain raw and uncultivated land to plaintiff and that he was to clear level, ditch, knock down hills and high places and prepare the same so that it could be properly and profitably utilized; that for such services plaintiff was to receive as compensation two-thirds of all cotton corps and one-half of all alfalfa crops raised thereon. The second and third counts of the complaint alleged additional verbal contracts based upon identical terms as alleged in count one. It further alleged that on October 20, 1951, without stating any right or reason therefor, and in contravention of the agreement between plaintiff and defendant as herein above set forth and which agreements had in all things been fully performed by plaintiff, defendant had served written notice to vacate and surrender unto him said premises, to the damage and loss of the plaintiff in said sum of $11,000, which was the reasonable and proper value of the services of plaintiff so as aforesaid rendered to the defendant.

Defendant answered, admitting the oral contract but denied breach thereof and set up several affirmative defenses.

The plaintiff replied as follows:

'That he denies the allegations thereof and says that the breach complained of concerning the contract between the plaintiff and defendant and upon which the claim of the plaintiff is based occured on to-wit October 20, 1951, and that said contract was a continuing one, from the inception thereof in August, 1942, up to the present time.' (Emphasis supplied.)

It is clear that plaintiff predicated his entire case upon an alleged breach of an express verbal contract and not upon any theory of an implied contract of quantum meruit as he now urges in his brief.

At the conclusion of plaintiff's case on motion of defendant, the district court dismissed appellant's complaint on the ground that he was not entitled to the relief sought. It found as follows:

'1. That plaintiff and defendant are residents of Dona Ana County, New Mexico, and that an actual controversy exists between plaintiff and defendant as to the matters alleged in plaintiff's complaint.

'2. That plaintiff, as tenant, and defendant, as landlord, in 1942 entered into an oral contract whereby plaintiff was to farm said farm property, known as the Bailey place, which was owned by the defendant.

'3. That the terms of the oral contract were, aside from division of crops, that defendant would give plaintiff Five Hundred and 00/100 ($500.00) Dollars and a tractor, and that in return, the plaintiff would clear and level the land, take out all the stumps and wood, and prepare and farm the land.

'4. That the agreement and arrangements between plaintiff and defendant did not specify a definite time that the agreement for plaintiff to farm defendant's property was to run.

'5. That in 1948 the defendant acquired certain other property known as the Johnson tract, and that plaintiff farmed the Johnson tract under the same terms as the Bailey tract.

'6. That in 1949 the defendant purchased another tract of land, known as the Barnett tract and delivered to the plaintiff for handling and managing under the same terms as were arranged on the Bailey tract.

'7. That plaintiff and defendant have carried out the terms of their oral contract and that neither party has breached the contract.

'8. That in October, 1949, the defendant sold to the plaintiff a certain 1941 Pontiac automobile, for which plaintiff agreed to pay the defendant the sum of Eight Hundred and 00/100 ($800.00) Dollars; that plaintiff has not paid said obligation and the same is still owing and outstanding.'

The...