Decision Date25 March 1949
Docket NumberNo. 5160,5160
Citation53 N.M. 188,204 P.2d 785
CourtNew Mexico Supreme Court

[204 P.2d 785, 53 N.M. 189]

Sam Dazzo, of Albuquerque, for appellant.

Hannett & Hannett, of Albuquerque, for appellee.

BRICE, Chief Justice.

This action was brought by appellee to enforce the specific performance of that 786portion of a purported contract containing, as it is alleged, an option to purchase certain real estate, which he claimed the right to exercise. From an adverse judgment the defendant has appealed to this court.

The court's decision is as follows:

'Findings of Fact

'(1) That both plaintiff and defendant are residents of the County of Sandoval, State of New Mexico '(2) On the 3rd day of November, 1945, plaintiff and defendant entered into an agreement in writing in words and figures as follows:

"Sandoval County, New Mexico

"November 3rd, 1945

"To Whom It May Concern:

"This agreement entered into by and between Jesus Rios Crecente and Margaret Vernier is for the purpose of binding the two principal parties to the following: Mrs. Margaret Vernier party of the first part agrees to lease to Jesus Rios Crecente her house and land for one year, the price of rent on this lease to be: One hundred and twenty dollars ($120.00) per year. Mr. Crecente agrees to come to Mrs. Vernier on or before the 15th of November, 1945 to give her $60.00 in advance or six months rent and later when the six months are up to pay rent at the rate of $10.00 per month. Mrs. Vernier also agrees to give Mr. Crecente first privilege of purchasing her property if later he decides to purchase same. Mrs. Vernier has set a price of $3000.00 as a sale price, also Mrs. Vernier gives Mr. Crecente a term of 2 years to continue renting or purchasing at above price. Also if Mr. Crecente erects or builds chicken houses or fences for same and decides he does not wish to purchase land from Mrs. Vernier he has a right to remove any fences or chicken houses he may set up or build at his own expense.

"(signed) Mrs. Margaret Vernier

'Jesus Rios Crecente


"(signed) Emilia Frank

'Tommie Valdez

"Subscribed and sworn to before me this 13-day of November, 1945.

"(Signed) Alfredo Valdez

"(Seal) Notary Public

"My commission expires July 29-1949.'

'(3) That thereafter plaintiff entered into the possession of said land under said lease and paid the rentals in said contract provided up to and until the 3rd day of November, 1947.

'(4) That on the 10th day of October, 1947 plaintiff advised defendant that he had decided to exercise his option to purchase.

'(5) That the defendant refused to sell or deliver a deed of conveyance to said property to the plaintiff.

'(6) That the property, possession of which was delivered to plaintiff by the defendant under said lease contract, consists of 6.85 acres of land, more or less, in the Middle Rio Grande Conservancy District, and 7.40 acres of land, more or less, of mesa land, all of said land being located inSandoval County, New Mexico, and being more particularly described as follows: (description of land)

'(7) That the defendant, Margaret Vernier, and her late husband purchased and acquired said land as community property, and that before the execution and delivery of said contract, the defendant's husband had departed this life, leaving surviving him two daughters and the defendant, Margaret Vernier.

'(8) That the deceased husband of the defendant died intestate on February 19, 1929.

'(9) That at the time of the execution of said contract, November 3, 1945, defendant was the owner of an undivided five-eighths interest in said described land.

'(10) That by the terms of paragraph 7 of plaintiff's complaint: 'Plaintiff tenders the purchase price of $3,000.00 and is ready, willing, and able to pay the same over to the defendant or into court upon order of the court.'

'(11) That the defendant refused said tender.

'(12) That the defendant, after the execution and delivery of the lease contractdated November 3, 1945, by the receipts for rent received by her from the plaintiff and signed by her, and by the letter written for her by her daughter, addressed to Gilberto Espinosa, Esquire, and signed by her, recognized the said lease and contract as an option to purchase.

'As Conclusions of Law the Court finds:

'(1) That the Court has jurisdiction over the parties and subject matter of this action.

'(1) That the contract annexed to plaintiff's complaint and marked 'Exhibit A' contains an option to purchase, and that the plaintiff has performed all the obligations under said contract encumbent upon him to perform, and upon payment into this Court of five-eighths of the purchase price of $3,000.00 to-wit: the sum of $1,875.00, plaintiff is entitled to a conveyance of all defendant's right, title and interest in and to that certain tract of land in Sandoval County, New Mexico now occupied by the plaintiff, comprising a total of 14.25 acres; 6.85, more or less, of which is in the Middle Rio Grande Conservancy District, and 7.40 more or less, or which is mesa land, said tract of land being more particularly described as follows: (description of land).

'(3) That the tender set forth in paragraph 7 of the plaintiff's complaint was a valid, unconditional tender of the purchase price of $3,000.00.

'(4) That the plaintiff is entitled to judgment and a decree of specific performance requiring and ordering the defendant, Margaret Vernier, to make execute and deliver to the plaintiff a warranty deedconveying her undivided five-eighths interest in said land to the plaintiff upon the plaintiff's paying into the Clerk of this Court for the use and benefit of the defendant the sum of $1,875.00.'

Thereafter the trial court entered a judgment requiring the defendant to specifically perform the contract by executing and delivering to the plaintiff a warranty deed conveying all of her right, title and interest in the land in suit (which it was adjudged was a five-eighths undivided interest), upon the payment to her by the plaintiff of the sum of $1,875.

The question depends on the meaning of that portion of the contract in suit in the following language:

'Mrs. Vernier also agrees to give Mr. Crecente first privilege of purchasing her property if later he decides to purchase same, Mrs. Vernier has set a price of $3000 as a sale price; Mrs. Vernier also agrees to give Mr. Crecente a term of two years to continue renting or purchasing at above price.'

We construe the first sentence quoted as though it had been written as follows:

'If Mrs. Vernier should desire to sell her property, she agrees to give Mr. Crecente the first privilege of purchasing it, if later he desires to purchase it.'

The following cases support this holding:

In Sander v. Schwab, 315 Ill. 623, 146 N.E. 509, the contract construed provided:

'It is understood and agreed that the party of the second part shall, in case of a bona fide sale of said premises, have a first option to purchase during the life of this lease at a price of $13,500. * * *'

The court said:

'The lease gives appellant, in case of a bona fide sale of the demised property, a first option to purchase it during the term at a price fixed or ascertainable. By the provision appellant's right to purchase is not absolute, but is conditioned upon an actual sale of the property. No duty or obligation to sell is imposed upon appellee. A mere desire or intention on his part to sell, or an oral request by him upon the appellant to purchase, is not equivalent to a sale. There is no allegation in the bill that appellee made a sale of the property. Hence the condition which would give appellant the right to purchase has not happened. Moreover, the option did not, apart from the price, specify the terms and conditions of sale, and is too indefinite to be specifically enforced.'

In Berven v. Miller, Cal.App., 194 P.2d 80, the contract provided:

'In consideration of tenant furnishing material and doing repairs, also work necessaryto decorating the premises, the landlord agrees that in event of a sale of property,the tenant shall have the first change to buy property at the offer made for same. * * *'

The court said:

'It is evident from a reading of the purported agreement between the parties that it falls within the rule just stated. The document signed by Mrs. Miller was at best a mere option which plaintiff under certain conditions could accept or reject. The terms of payment, the times of payment, the property to be sold, are each so indefinite and uncertain that a court could not decree specific performance of the agreement.'

In Cloverdale Co. v. Littlefield, 240 Mass. 129, 133 N.E. 565, the lease contract construed, provided:

'The party of the first part agreed to give the Cloverdale Company, party of the second part, the first right to re-lease for a term of three more years at the expiration of the present lease on the same conditions and terms as herein mentioned.'

The defendant refused to re-lease the premises to the plaintiff. The court said:

'The ruling that 'the lessee was entitled to a renewal to the lease' was plainly right if the word 'first' does not qualify and make conditional the 'right to re-lease' given to the lessee by the covenant of the lessors. We are of opinion that the word 'first' cannot be rejected as surplusage in determining the meaning of the words 'first right to re-lease' contained in the agreement if regard be given to the general rule that the intention of parties to a written contract is to be ascertained upon a consideration of the several words, phrases and parts of the instrument, and of their effect upon it as a whole. So regarded the phrase 'first right to re-lease' in common use plainly imports not an absolute and unqualified right in the lessee to have a re-lease at the expiration of the existing lease, but merely a preferential right to have a re-lease at the option of the lessee in the event the lessors then desired to lease the property and did not then desire to sell it or...

To continue reading

Request your trial
4 cases
  • In re Chavez
    • United States
    • U.S. Bankruptcy Court — District of New Mexico
    • March 18, 1982
    ...Inc. v. Erigan, 403 S.W.2d 784 (Tex.1966). See also Lommori v. Milner Hotels, 63 N.M. 342, 319 P.2d 949 (1957); Crecente v. Vernier, 53 N.M. 188, 204 P.2d 785 (1949). So too should an ambiguity in a default letter be construed against the In construing the lease and default letter, the Cour......
  • May v. Walters
    • United States
    • New Mexico Supreme Court
    • August 31, 1960
    ...3, 1956. Thus, under the evidence, the trial court, in its instruction, properly submitted this question to the jury. Crecente v. Vernier, 53 N.M. 188, 204 P.2d 785. See also East & West Ins. Co. of New Haven, Conn. v. Fidel, 10 Cir., 49 F.2d Finding no error in the record, the judgment of ......
  • Solomon v. Ables, 5789
    • United States
    • New Mexico Supreme Court
    • August 19, 1954 this contention. This rule is applicable only where the instrument is of doubtful meaning, indefinite and ambiguous. Crecente v. Vernier, 53 N.M. 188, 204 P.2d 785; Peterson v. Modern Brotherhood of America, 125 Iowa 562, 101 N.W. 289, 67 L.R.A. 631; Tischendorf v. Lynn Mutual Fire Insur......
  • Lommori v. Milner Hotels, Inc.
    • United States
    • New Mexico Supreme Court
    • October 22, 1957
    ...Landlord and Tenant Sec. 376, p. 1125. The rule of construction of ambiguous terms in a lease was stated by us in Crecente v. Vernier, 1949, 53 N.M. 188, 204 P.2d 785, 790, in which we 'If construction is necessary under the circumstances, it will not be favorable to the lessee who prepared......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT