DAVIS v. CAMPBELL
| Decision Date | 08 September 1948 |
| Docket Number | No. 5103,5103 |
| Citation | 52 N.M. 272,197 P.2d 430 |
| Parties | DAVIS v. CAMPBELL. |
| Court | New Mexico Supreme Court |
Rueckhaus & Watkins, of Albuquerque, for appellant.
F. Ernest Ayers, of Estancia, for appellee.
On September 14, 1944, plaintiff, who was in the business of publishing biographical sketches of the lives of New Mexico citizens in a book called the Historical Encyclopedia of New Mexico, through his agent and representative, R. D. Ross, secured a subscription from D. B. Campbell, Sr., the defendant, for a copy of this book, for the sum of $38.50. This subscription or note reads as follows:
'I hereby authorize the New Mexico Historical Association to prepare and insert in the Historical Encyclopedia of New Mexico, and I hereby subscribe for one (1) set of said encyclopedia for which I promise to pay Thirty eight Dollars and fifty cents ($38.50) to New Mexico Historical Association or order, at Albuquerque, New Mexico, one-half of said amount payable on this date and balance payable on submission of biographical sketch.'
On the same day the defendant entered into an agreement whereby he agreed to furnish the plaintiff with a photograph of himself and the plaintiff was to prepare a portrait engraving therefrom to be inserted in the encyclopedia for the sum of $275.00, upon submission of proof of the engraving. Accordingly, the defendant furnished the plaintiff with data from which he was to write a biographical sketch of his life, together with a kodak snapshot of himself, as well as a kodak picture of his wife.
On March 11, 1945, the plaintiff personally called upon the defendant and submitted to him a biographical sketch which was typewritten, but on account of his poor eyesight, plaintiff read it to him, likewise the engraving of his picture. However, no printer's sketch was either presented nor read to him. At the request of plaintiff, the defendant gave him a check in the sum of $313.50, and then the plaintiff procured the following instrument from him:
It is to be noted that nothing is said in this instrument as to the defendant's wife. Subsequently the encyclopedia was published containing an erroneous biographical sketch of the defendant's life together with his and his wife's pictures.
On September 7, 1946, the encyclopedia was delivered to the defendant, whereupon he signed and delivered to the plaintiff, the following receipt:
'Received from the New Mexico Historical Association one copy of the Historical Encyclopedia of New Mexico in which biographical sketch and portrait appears as per agreement.'
This suit was filed by the plaintiff on the alleged contract or note of March 11, 1945,alleging that the defendant was indebted to him thereon in the sum of Two Hundred and Seventy-five Dollars; and that he had performed all conditions precedent in said contract. A copy of the subscription and note were made a part of the complaint and marked exhibit 'A'.
The defendant denied the allegations of the complaint and further alleged that the plaintiff did not submit a proof of the engraving of the photograph of his wife; that he did not approve any proof of the engraving for publication in the encyclopedia; and that the photograph of his wife as inserted by the plaintiff in the encyclopedia was of poor quality and inferior to the photograph submitted to him.
By way of an affirmative defense, the defendant alleged that the contract was procured by fraudulent misrepresentations of the agent and representative of the plaintiff, in that the plaintiff agreed to publish a biographical sketch and portrait of the defendant and to insert a portrait of his wife in the encyclopedia; that in order to secure the consent of the defendant to the publication of the biographical sketch and the insertion of the two photographs, the plaintiff represented to him that if he would insert and pay for the insertion of his picture, the plaintiff would include his wife's picture free of charge; that plaintiff's agent misrepresented the amount of said payment; that the signing of the note was only to authorize the insertion of his wife's picture and that it would not cost him anything more than the cost of his biographical sketch and photograph; that he has paid for it and does not owe the plaintiff anything. He further alleged that the representations made by plaintiff's agent were known to be untrue at the time, and were recklessly made with the intent to deceive the defendant and for the purpose of inducing him to act upon them; that defendant relied upon these misrepresentations,and in reliance of same signed the papers required to be signed by the plaintiff or his agent; that he was injured by ridicule, unfavorable publicity and additional expense thereby. He also alleged that the biographical sketch of his life as published by the plaintiff in the encyclopedia was not correct in certain instances; and that the plaintiff did not submit the biographical sketch to him for his approval before it was published, although he had agreed to do so.
By his cross-complaint, the defendant adopted the allegations contained in his affirmative defense and prayed for damages as a result thereof.
It is to be noted that the note upon which this suit is founded, marked plaintiff's exhibit No. 1, and introduced in evidence differs materially from plaintiff's exhibit 'A' which was made a part of his complaint. The plaintiff in his exhibit 'A' after the word 'from' inserted the words 'Mrs. D. B. Campbell's photograph', which do not appear in his exhibit No. 1.
Plaintiff urges four assignments of error in support of his contention that the judgment should be reversed, as follows:
1. That there is no evidence that the subscription sued on by the plaintiff was secured from the defendant by fraud.
2. That the parole evidence rule excludes evidence of prior or contemporaneous oral agreements which would vary the written contract.
3. That the plaintiff did not violate his agreement to submit proof of the biolgraphical sketch of the defendant for his approval before publishing same in the Historical Encyclopedia of New Mexico.
4. That the defendant has not shown that he sustained any damage as a result of the errors in his biographical sketch.
After hearing all the evidence on the issues raised by the pleadings thereto, the trial court made the following findings of fact, to-wit:
'1. That the note sued on by plaintiff was secured from defendant by fraudulent representations to the effect that there was no charge in addition to what defendant had already paid to plaintiff.
'2. That the note designated as 'Plaintiff's Exhibit 2' was secured by plaintiff by a fraudulent representation that the amount was two seventy-five, when in fact it was a note for two hundred seventy five dollars.
'3. That the salesmanship used by the plaintiff and his agent, R. B. Ross, in securingPlaintiff's Exhibits 1, 2 and 3 was slick salesmanship of a type intended to defraud defendant, and did result in defrauding defendant through his reliance on the representations made by plaintiff and his agent, R. B. Ross.
'4. That the defendant relied upon the representations made by the plaintiff and his agent, R. B. Ross, and that it was proper for defendant to rely upon the representations made by the plaintiff and his agents, because of defendant's poor eyesight, his age and his lack of education.
'5. That the biographical sketch of defendant, as published by plaintiff in the Historical Encyclopedia of New Mexico, was not correct as to the time defendant had lived in Torrance County, New Mexico, and was not correct as to the time when defendant left Blue County, Oklahoma, and the resulting inference as to the age of defendant, resulting from these misrepresentations together with the...
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