Cowles v. Hagerman

• Decision Date: 29 August 1910
• Citation: 110 P. 843,15 N.M. 600,1910 -NMSC- 052
• Parties: COWLES v. HAGERMAN.
• Court: New Mexico Supreme Court

110 P. 843

15 N.M. 600, 1910 -NMSC- 052

COWLES v. HAGERMAN.

Supreme Court of New Mexico

August 29, 1910

Appeal from District Court, Chaves County; before Justice W. H Pope.

Action by James M. Cowles against James J. Hagerman. Judgment for defendant, and plaintiff appeals. Affirmed.

Eden & Bowers, for appellant.

Reid & Hervey, for appellee.

McFIE J. (after stating the facts as above).

The contract sued on in this case is silent as to the time or complete performance, and in such case the law requires the same to be performed within a reasonable time from the date of the contract. 9 Cyc. p. 614, and citations; Neher v Viviani et al. (decided at this term) 110 P. 695. Upon the trial, the court submitted the question of reasonable time to the jury as a question of fact in paragraphs 12, 13, 14, and 15 of its instructions.

The first three assignments of error are based upon the giving of these instructions. This question is not an open one on this appeal. The case was tried upon the same evidence as that upon which the case was decided on the former trial. When the case was before this court upon the former appeal, the court held: "It is sometimes a question of law for the court whether a contract has been performed in a reasonable time as when it depends upon the construction of a written contract only, or upon undisputed extrinsic facts; but, when it depends upon disputed facts extrinsic to the contract, it is for the jury. 9 Cyc. 615; Cotton v. Cotton, 75 Ala. 345; Luckhart v. Ogden, 30 Cal. 547; Hill v. Hobart, 16 Me. 164. We think it was a material issue in this case whether the appellee, if he ever in fact completed the well, did so within a reasonable time under all the circumstances in the case. The record shows that a year after the well was commenced appellee hired another party to put down a well within a few feet of the one bored by appellant, and that the second well was completed, and a good flow of water secured therefrom within three or four months. The contract between these parties, which is in writing, provided that the work was to commence at a given time and be carried forward to completion 'faithfully and continuously,' thus showing the intention of the contracting parties that no more than a reasonable length of time was contemplated for the completion of the well." Hagerman v. Cowles, 14 N.M. 422, 94 P. 946. As will be observed, the court held that upon the evidence before the court the question should have been submitted to the jury. Upon this issue, therefore, the former decision has become the law of the case, and will not be reviewed in this case. Crary v. Field, 10 N.M. 257, 61 P. 118. The refusal of the court to give to the jury plaintiff's requested instructions Nos. 1, 2, 2a, and 3 are assigned as error.

These instructions raise the only remaining point relied upon in the oral argument by appellant's counsel, namely, that if appellee, Hagerman, by his conduct and partial payments accepted the work, he waived the time of performance, and was bound to pay according to his contract. By reference to the contract, which is in writing, it will be observed that it provided that appellee shall be required to pay at least 50 per cent. of the contract price of the artesian well monthly as the work progressed, and the plaintiff admits in his pleadings that $1,600 were actually paid pursuant to the contract. Under the contract, also, the appellee was given the option of causing the work to cease before the well reached a depth of 1,000 feet. The appellant contends that because the appellee, Hagerman, made these payments and permitted the appellant, Cowles, to continue the work so long, he should be held to have accepted the work and waived his right to take advantage of the default of the appellant in failing to complete the contract within a...