Epstein v. Waas.

• Decision Date: 07 June 1923
• Docket Number: No. 2698.,2698.
• Citation: 216 P. 506,28 N.M. 608
• Parties: EPSTEINv.WAAS.
• Court: New Mexico Supreme Court

28 N.M. 608

216 P. 506

EPSTEIN

v.WAAS.

No. 2698.

Supreme Court of New Mexico.

June 7, 1923.

Syllabus by the Court.

The claimed error or defect inhering in findings of fact and conclusions of law are sufficiently called to the attention of the trial court, where they are excepted to in general terms, and requested findings are tendered which present the contentions of the party litigant, and an exception is taken to their refusal.

An executory contract, which involves title to or an interest in real estate, may be rescinded by a subsequent parol agreement of the contracting parties.

A mutual agreement of contracting parties to rescind their contract is not void for lack of consideration, as their being reciprocally absolved from further obligation under the contract constitutes a sufficient consideration to support the agreement.

A variance between the pleading and proof of a party litigant, which precludes a recovery, means a substantial and material difference, in that they depart from each other upon a material phase of the cause of action or defense.

Immaterial or inconsequential variances which do not mislead nor prejudice the opposite party should be disregarded.

Findings of fact which are not supported by substantial evidence will not be upheld on appeal.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Action by S. Epstein against Allan H. Waas. From an order sustaining defendant's motion for judgment, plaintiff appeals. Reversed, and remanded with directions.

A “variance” between the pleading and proof which precludes a recovery means a substantial and material difference, in that they depart from each other upon a material phase of the cause of action or defense.

Thomas J. Mabry, of Albuquerque, for appellant.

Marron & Wood, of Albuquerque, for appellee.

BRATTON, J.

The parties hereto entered into a written contract whereby the appellant agreed to purchase from the appellee a certain apartment house situated in the city of Albuquerque at the agreed purchase price of $12,700. Of this sum, $500 was paid at the time the contract was executed. Shortly thereafter the appellant asserted that he had been misled with regard to the character of the premises and sought a rescission of the contract. It appears that negotiations concerning such rescission began on the same day and within a very short time after the contract had been entered into, and while it was yet executory in character. The parties met at the office of an attorney, and pursuant to a conference held there mutually agreed to a rescission of the contract, and as a part of such agreement, appellee there agreed to return the $500 so paid, less the amount of commission to be charged by the broker who made the sale. The appellee then said that he was leaving on the afternoon train for Denver to transact some business and would return within a week and would then make settlement. When this agreement was entered into the appellant surrendered to the appellee his copy of the contract, as well as a receipt covering the $500 cash payment, and relinquished all rights which he held under the contract. Such payment was not made, and this suit was instituted to recover the said sum.

At the time the appellant rested his case, the appellee moved the court for judgment. Three separate, material grounds were stated, namely: That the original contract for the sale of the premises was one which was required by the statute of frauds to be in writing, and that an agreement to rescind the same, also involving an interest in lands, must likewise be in writing; that such contract was without consideration; and that the contract pleaded in the complaint charged that the appellee agreed to return to the appellant the entire $500, while the evidence showed that he agreed to pay such sum less whatever charge the broker might make as a commission, and that therefore there was a variance between the contract pleaded and the one proven. At the time this motion was made, the appellant asked leave to amend his complaint by interlineation to conform to the proof in this regard. The court announced that the proposed amendment could not change the result, that in its opinion the agreement to rescind was without consideration, and sustained the motion upon that ground. He denied the motion with regard to the contract of rescission being required to be in writing.

[1] The appellee contends that we are precluded from considering the appellant's contentions because no proper exceptions were taken to the findings of the trial court. This cause was tried before the court without a jury, and under such circumstances the findings of fact are conclusive and are not subject to review as erroneous or defective, where the claimed error or defect were not called to the attention of the trial court. The purpose of this rule is to give to the trial court an opportunity to correct such error. In the instant case, the findings of fact and conclusions of law were excepted to in general terms, and the appellant then tendered to the trial court findings of fact, supporting his contentions with the request that they be found, and, upon the court's refusal to so find, an exception was duly taken. This, we think, is sufficient to call to the attention of the trial court the contentions being made, and sufficiently pointed out wherein it was contended the court was falling into error. Fullen v. Fullen, 22 N. M. 212, 153 Pac. 294.

In Osborne v. Osborne, 24 N. M. 96, 172 Pac. 1039, the court said:

“This case was tried to the court without a jury, and, as contended by appellee, it is well settled that when there is a trial by the court, without a jury, the findings of fact are conclusive, and are not subject to review as erroneous or defective, in the absence of proper exceptions thereto, which need not be formal, however. Under our statute, the complaining party is required in some manner to call the attention of the trial court to the claimed error, and give that court an opportunity either to avoid or correct the same.”

[2] The first question discussed by appellant concerns the necessity for the contract of rescission being in writing. We could, with propriety, decline to decide this question, as the trial court agreed with him upon this phase of the case, and no cross-appeal or cross-assignments of error have been taken or presented by the appellee. It is perhaps preferable, however, to decide the same, so that the law with regard thereto may be declared. We agree with the trial court. The great weight of modern authority is to the effect that an executory contract involving title to, or an interest in, real estate may be rescinded by an agreement resting in parol. No detailed discussion of the rule is necessary.

In 25 R. C. L., p. 712, § 357, it is said:

“The general rule permitting written contracts to be abrogated or rescinded by an oral agreement is fully applicable to contracts required by the statute of frauds to be in writing; and such a contract may be the subject of an oral accord and satisfaction, or may be rescinded by a subsequent oral agreement.”

And in Maupin on Marketable Title, § 236, the rule is declared in this language:

“It has been decided that a rescission of a contract of sale...