Davies v. Boyd, No. 7207

Docket NºNo. 7207
Citation385 P.2d 950, 73 N.M. 85, 1963 NMSC 164
Case DateSeptember 16, 1963
CourtSupreme Court of New Mexico

Page 950

385 P.2d 950
73 N.M. 85
Donn T. DAVIES and Henrletta Davies, Plaintiffs-Appellees,
v.
Franklin L. BOYD and Barbara B. Boyd,
Defendants-Appellants.
No. 7207.
Supreme Court of New Mexico.
Sept. 16, 1963.

[73 NM 86] Catron & Catron, Santa Fe, for appellants.

George T. Reynolds, Taos, for appellees.

[73 NM 87] NOBLE, Justice.

Defendants, by written contract, agreed to buy real estate in Taos County, New Mexico, for $17,500, of which $8,000 was represented by defendants' promissory note payable on or before two years from its date, and the remainder payable at $100 per month including interest. A deed was held in escrow to be delivered upon payment in full. The $8,000 note was secured by a mortgage upon other property of defendants. Within a few months, defendants became

Page 951

in default in the monthly payments and plaintiffs gave written notice of their election to terminate and cancel the contract and to retake possession. Possession of the property was redelivered to plaintiffs who commenced suit upon and foreclosure of the $8,000 note and mortgage upon its default. This appeal is from the judgment in plaintiffs' favor and against defendants for the amount of the note, interest and attorney fees, and decreeing foreclosure of the mortgage securing that note.

Plaintiffs contend that the note and mortgage (1) were given 'in lieu' of a down payment on the purchase of the Taos real estate; (2) stand in the same position as any other payment made on the purchase; and (3) were forfeited upon cancellation of the contract by plaintiffs for default in the monthly payments. We do not so construe the purchase and sale contract between the parties.

The written contract commenced with a statement that sellers had only a contract of purchase for the real estate with a deed in escrow. There is a recital that purchasers (defandants) were unable to make a down payment but were willing to give a second mortgage on other property, securing their promissory note of $8,000 made payable to sellers on or before two years from date. The contract provided that the purchase price of $17,500 should be payable, $8,000 by the promissory note secured by the second mortgage on other real estate, and the remaining $9,500 to be payable at the rate of $100 per month including interest. The contract provided that upon default in such payments, the sellers (plaintiffs) might, at their option, upon thirty-days written notice, declare the contract null and void, and retain all payments made under the contract as liquidated damages, and receive the deed back from the escrow agent.

While the contract of purchase and sale recites that purchasers are unable to make a cash down payment and that they are willing to execute the note and secure it by a mortgage on other real estate, we find nothing ambiguous in the language of the contract, nor anything in its language requiring the construction contended for by plaintiffs. The purpose, meaning and intent of the parties to a contract is to be deduced fromt he language employed by them; and where such language is not [73 NM 88] ambiguous, it is conclusive. The court's duty is confined to interpretation of the contract which the parties made for themselves and may not alter or make a new agreement fot the parties. Fuller v. Crocker, 44 N.M. 499, 105 P.2d 472; Hoge v. Farmers Market & Supply Co. of Las Cruces, 61 N.M. 138, 296 P.2d 476; Sanders v. Freeland, 64 N.M. 149, 325 P.2d 923. See Moore v. Freeman, 58 N.M. 139, 266 P.2d 674, 41 A.L.R.2d 1388.

In our view, the contracts, in this case, does not provide that sellers accepted purchasers' promissory note as part payment, but it represented a separate obligation of purchasers to pay one of the installments of the unpaid purchase price. It was, like other obligations of purchasers under the contract, one to make payment at the time provided. We think that purchasers' default in payment of this note would have been such a default as would have authorized sellers to exercise their option to elect to rescind the contract and receive back their deed from the escrow agent, or enforce the agreement.

The parties to a contract may provide for its rescission upon any terms agreeable to them; Young v. Lee, 47 N.M. 120, 138 P.2d 259, and this court has indicated that a provision for forfeiture of installment payments made prior to default, which approximate rent, will...

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33 practice notes
  • CC Housing Corp. v. Ryder Truck Rental, Inc., No. 16774
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 3, 1987
    ...made for themselves, and absent any ambiguity, the court may not alter or fabricate a new agreement for the parties. Davies v. Boyd, 73 N.M. 85, 87-88, 385 P.2d 950, 951 (1963); Thompson v. Occidental Life Ins. Co. of Cal., 90 N.M. 620, 621, 567 P.2d 62, 63 (Ct.App.), cert. denied, 91 N.M. ......
  • Thompson v. Occidental Life Ins. Co. of California, No. 2765
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 28, 1977
    ...for the parties. Absent any ambiguity, our duty is confined to interpreting the contract which they made for themselves. Davies v. Boyd, 73 N.M. 85, 385 P.2d 950 As to the question of whether the plaintiff was entitled to a refund of a part of the premium paid, the rule is that: "In the abs......
  • Conocophillips Co. v. Lyons, No. 32,624.
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 24, 2012
    ...“the contract which the parties made for themselves [as a court] may not alter or make a new agreement for the parties.” Davies v. Boyd, 73 N.M. 85, 87–88, 385 P.2d 950, 951 (1963). Therefore, when parties have entered into a valid lease of land for oil and gas purposes, and the terms conta......
  • Leonard v. Barnes, No. 7488
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 19, 1965
    ...of the contract which the parties made for themselves, and the court may not alter or make a new agreement for the parties. Davies v. Boyd, 73 N.M. 85, 385 P.2d Where a written contract is uncertain or ambiguous, the intent of the parties may be ascertained by their language and conduct, th......
  • Request a trial to view additional results
33 cases
  • CC Housing Corp. v. Ryder Truck Rental, Inc., No. 16774
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 3, 1987
    ...made for themselves, and absent any ambiguity, the court may not alter or fabricate a new agreement for the parties. Davies v. Boyd, 73 N.M. 85, 87-88, 385 P.2d 950, 951 (1963); Thompson v. Occidental Life Ins. Co. of Cal., 90 N.M. 620, 621, 567 P.2d 62, 63 (Ct.App.), cert. denied, 91 N.M. ......
  • Thompson v. Occidental Life Ins. Co. of California, No. 2765
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 28, 1977
    ...for the parties. Absent any ambiguity, our duty is confined to interpreting the contract which they made for themselves. Davies v. Boyd, 73 N.M. 85, 385 P.2d 950 As to the question of whether the plaintiff was entitled to a refund of a part of the premium paid, the rule is that: "In the abs......
  • Conocophillips Co. v. Lyons, No. 32,624.
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 24, 2012
    ...“the contract which the parties made for themselves [as a court] may not alter or make a new agreement for the parties.” Davies v. Boyd, 73 N.M. 85, 87–88, 385 P.2d 950, 951 (1963). Therefore, when parties have entered into a valid lease of land for oil and gas purposes, and the terms conta......
  • Leonard v. Barnes, No. 7488
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 19, 1965
    ...of the contract which the parties made for themselves, and the court may not alter or make a new agreement for the parties. Davies v. Boyd, 73 N.M. 85, 385 P.2d Where a written contract is uncertain or ambiguous, the intent of the parties may be ascertained by their language and conduct, th......
  • Request a trial to view additional results

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