Clear v. Patterson, No. 284

• Docket Nº: No. 284
• Citation: 1969 NMCA 91, 459 P.2d 358, 80 N.M. 654
• Case Date: September 12, 1969
• Court: Court of Appeals of New Mexico

Page 358

459 P.2d 358 80 N.M. 654 Kenneth CLEAR, C. C. Cobb and Howard Holler, d/b/a Orbit Car
Wash, Plaintiffs-Appellees,
v.
Curtis PATTERSON and J. B. Sellman, Defendants-Appellants. No. 284. Court of Appeals of New Mexico. Sept. 12, 1969.

[80 NM 655]

Page 359

Clifford L. Payne and John Sanders, Lovington, for defendants-appellants.

J. Wayne Woodbury, Silver City, for plaintiffs-appellees.

OPINION

HENDLEY, Judge.

Defendants Patterson and Sellman appeal from a judgment granted plaintiffs by the trial court sitting without a jury.

Plaintiffs' complaint was framed in negligence and contract. It involved the building of a car wash, alleging it was constructed in an unworkmanlike, unskillful and negligent manner.

The trial court made extensive findings of fact which, in essence, stated that defendants Patterson and Sellman breached their contract to plaintiffs in that the structure ture turned over to plaintiffs was constructed in a negligent, unworkmanlike and unskillful manner. The authorities are too numerous to cite for the proposition that on review the trial court's findings will not be disturbed if supported by substantial evidence. We affirm for the reasons hereinafter stated.

1) Defendants contend that 'the contractor's liability is fixed by the terms of his contract, thus he is obligated to perform according to those terms.' Defendants challenge the trial court's finding that 'Defendants did not fulfill their contract in accordance with the terms and conditions of the same, but erected said car wash in an unskillful and negligent manner.' We find no error in that finding. It is true that a court will not rewrite a contract for the parties, Brown v. American Bank of Commerce, 79 N.M. 222, 441 P.2d 751 (1968); but absent express language to the contrary, a court will apply the every day meaning in interpreting the terms of a contract. Raulie v. United States, 400 F.2d 487 (10th Cir. 1968)

Defendants agreed to construct a car wash similar to another car wash which defendants owned and which had been inspected by plaintiffs. That car wash was to be turned over to plaintiffs 'ready to operate.' As a part of the car wash defendants were required to construct a sump. Defendants constructed a sump that could not function as a sump. The trial court [80 NM 656]

Page 360

found this defect undermined the whole structure. To say 'that Defendants (sic) * * * responsibility was to deliver to Plaintiffs a good and sufficient structure * * * is not within the contract and agreement,' as defendants claim, is contrary to the customary meaning of the promissory language used by defendants. Here, defendant impliedly warranted that they would exercise such reasonable degree of skill as the nature of the service required. Garcia v. Color Tile Distributing Company, 75 N.M. 570, 408 P.2d 145 (1965); Andriola v. Milligan, 52 N.M. 65, 191 P.2d 716 (1948).

To support this first contention, defendants assert that they did not guarantee the sufficiency of the specification, that a 'contractor is not liable in case the structure sinks from defects in the structure or fault of the soil where the terms of the contract were complied with.' Without passing on the validity of the latter statement, we hold that it does not help the defendants here. Defendants rely on Staley v. New, 56 N.M. 756, 250 P.2d 893 (1952). That case is distinguishable because there the contractor and subcontractor installed the heating system, the subject of the dispute, in accordance with the plans and specifications of plaintiffs' agent. Contrary to defendants' contention, we are not concerned with the sufficiency of the specification, but with a failure to build in accordance with the contract terms. Further, and also contrary to defendants' contentions, plaintiffs' damage did not result from the 'fault of the soil.' The trial court found the damage...