Culp v. Sandoval
| Decision Date | 01 May 1916 |
| Docket Number | 1858. |
| Citation | 159 P. 956,22 N.M. 71,1916 -NMSC- 028 |
| Parties | CULP ET AL. v. SANDOVAL. |
| Court | New Mexico Supreme Court |
On Motion to Dismiss Motion for Rehearing, September 4, 1916.
Syllabus by the Court.
Where a person has agreed to perform an act, whatever is necessary to the performance of the act is a part of the agreement, and it is implied that he must furnish the means of accomplishing the act; hence, when a vendor has contracted to sell goods f o. b. cars, he must procure the cars and load the goods thereon.
Where under a contract, the vendor reserves unto himself the option of delivering the goods sold to the vendee, on board a vessel or the cars of a railroad company, upon any one of 5 days or any one of 15 days, assuming that it is the duty of the vendee to furnish the vessel or cars, the vendor is obligated to notify the vendee at what time he proposes to deliver the goods.
Where a party appealed from a judgment adverse to him in the district court and executed a supersedeas bond which stayed and suspended all proceedings under such judgment, and preserved the status quo pending the determination of the appeal and prior to a final determination of the appeal, such party voluntarily pays and satisfies such judgment; such payment amounts to a voluntary acquiescence in and recognition of the validity of such judgment, and estops appellant from further prosecuting his appeal.
Appeal from District Court, Bernalillo County; H. F. Raynolds District Judge.
Action by C. S. Culp and B. C. Culp and Isaac Barth, copartners doing business as Culp-Barth Sheep Company, against Jesus M Sandoval. From a judgment for plaintiffs, defendant appeals. Affirmed.
Neill B. Field, of Albuquerque, for appellant.
Mann & Venable, of Albuquerque, for appellees.
On the 23d day of November, 1910, a complaint in two counts was filed by the appellees against the appellant, alleging in the first count that the appellant, Sandoval, agreed to sell and deliver to the said appellees, f. o. b. cars at Albuquerque, between the 5th day of November, 1910, and the 10th day of November, 1910, 1,800 lambs at agreed prices, which lambs were to be in good condition, free from scab, and to pass government and territorial inspection. A copy of this contract was attached as an exhibit to the complaint. It was further alleged that the appellant, Sandoval, refused to deliver the lambs at the time and place agreed upon, and that thereby the appellees suffered certain damages. They further alleged that they advanced and paid to the appellant as an advance payment $500, and they asked damages for the alleged breach of the contract upon the first cause of action in the sum of $1,328. The second cause of action alleged the breach of a contract entered into on the 20th day of October, A. D. 1910, between the same parties, whereby the appellant agreed to sell and deliver f. o. b. cars Albuquerque, N. M., one double-deck car of old ewes at a certain agreed price. It was alleged that $75 had been advanced and paid to appellant as an advance payment upon these sheep, and alleged the failure of the appellant, Sandoval, to keep his contract and to deliver the sheep. A copy of this contract was also attached as an exhibit.
The appellant filed an amended answer and counterclaim. For the purpose of this appeal it is sufficient to say that the appellant denied that he failed and refused to deliver to the said appellees the said lambs, or any part thereof, and alleged that the appellees did not, at any time before or subsequent to the 10th day of November, 1910, provide any cars upon which the appellant could deliver the lambs and ewes so contracted and agreed to be delivered, and alleged that after appellees had failed to supply the cars, he made a tender of the lambs and sheep to the appellees, which appellees refused to accept, for the reason that the market price of lambs and sheep of the quality and character contracted for had greatly depreciated prior to the time the appellees had agreed to accept the delivery of the lambs. Appellant alleged in his amended counterclaim that as a result of the failure of the appellees to keep their contracts, he has suffered damages in a certain amount, and he filed a bill of particulars, showing damage in the amount of $1,428.90. A reply was filed to the amended answer and counterclaim, which denied substantially all the new matter set up in the amended answer and counterclaim, and denied that the appellees ever agreed to furnish appellant any cars whatever, and alleged that the cars were to be furnished by the appellant for the shipment of said sheep and lambs. This allegation as to the liability of the appellant to furnish the cars, the court, after full argument, struck out of the reply on motion of appellant, holding that, as a matter of law, the appellees were obligated to furnish cars. The cause thereafter came on for hearing, and the court made certain findings, some at the request of the appellant, and some at the request of the appellees, and signed a bill of exceptions, in which the substance of all the evidence is set forth. The court found:
"That the plaintiffs never demanded from the defendant, Sandoval, at any time the delivery of sheep and lambs in compliance with the contract, and never designated nor pointed out to the said defendant, Sandoval, any cars upon which Sandoval might load the sheep and lambs described in the contracts, nor notified the said Sandoval that the plaintiffs were ready to receive the sheep and lambs, or had cars in readiness upon which the sheep and lambs might be loaded by the defendant."
It also found:
"That between the 5th and 16th days of November, 1910, the market price of lambs in Albuquerque depreciated to the extent of approximately one cent a pound."
It also found that the appellant, Sandoval, failed to deliver the sheep and lambs at the times and places agreed upon in said contracts, and rendered judgment for appellees for $500, with interest at the rate of 6 per cent. per annum from October 3, 1910, until paid, and the further sum of $75 with 6 per cent. per annum from the 20th day of October, 1910. It also found that the appellant, Sandoval, did, upon the 16th day of November, tender the sheep and lambs of the kind and number described in the contracts, and which substantially complied with the requirements thereof, and that appellees refused to accept the same upon the ground that the time for the delivery thereof had expired. To the action of the court in holding that the defendant had been guilty of breach of contract, and therefore was liable in damages to the plaintiffs, and from the final judgment rendered in accordance with such decision, this appeal is prosecuted.
The order, entered June 2, 1911, striking out the third paragraph of appellees' reply, which paragraph of reply set up the fact that it was the appellant's duty to furnish the cars and load the lambs and sheep thereon, was made by the presiding judge of said court prior to statehood. Judge Raynolds, who tried the case, as appears from the finding, quoted supra, evidently took the view that under the terms of the contract it was the duty of appellant to furnish the cars and deliver the sheep and lambs loaded thereon. Appellant, in his brief, says:
"The controlling question in the case which the plaintiffs disputed at all times in the lower court is, Who was to furnish the cars under the terms of the contract?"
Appellees refuse to meet appellant upon this issue, and advance a theory, which they deduce from the evidence, in support of the judgment in their favor. Without discussing appellees' theory, we will proceed upon the assumption that appellant has correctly stated the issue, and pass to a consideration of the question upon which he relies for a reversal.
The general rule is that one who undertakes to accomplish a certain result impliedly agrees to supply all means necessary to such result. Here appellant agreed to deliver the lambs and ewes to appellees f. o. b. cars at Albuquerque. The term has a well-known and clearly understood meaning in the business world, signifying "free on board." Bouvier's Law Dictionary. Under this contract, then, appellant undertook and stipulated with appellees that he would deliver the stock to them, at his own expense, on board the cars at Albuquerque and within a stipulated time. When delivery was made, in accordance with the contract of sale, appellees were to make payment for the lambs and ewes.
Appellant admits that he could not deliver the lambs and ewes from his own flock, as was evidently contemplated by both parties, because such animals were infected with scabbies, and he was required to "dip" them by the government inspectors. He contends, however, that he did not breach his contract because appellees failed to have the railroad company set out cars to receive the designated number of lambs and ewes purchased, and to notify him thereof.
It is undeniably true that the early English cases held that unless it was otherwise provided in a contract to ship f. o. b., the duty of specifying or furnishing the transportation facilities fell upon the buyer. Armitage v. Insole, 14 Q. B. 728; Sutherland v. Allhusen, 14 L. T. N. S. 666. Some of the American state courts have followed the same holding. Hocking v. Hamilton, 158 Pa. 107, 27 A. 836; Dwight v. Eckert, 117 Pa. 490, 12 A. 32; Kunkle v. Mitchell, 56 Pa. 100; and the early Wisconsin case of Boyington v. Sweeney, 77 Wis. 55, 45 N.W. 938. In Illinois the question has been frequently discussed, but never definitely decided. In the case of American Trust & Savings Bank v. Zeigler Coal Co., 165 F. 34, 91 C. C. A. 72, the Circuit Court of Appeals, Seventh Circuit, in discussing...
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