Fed. Land Bank of Wichita v. Beck Et Ux.

• Decision Date: 14 January 1942
• Docket Number: No. 4638.,4638.
• Citation: 121 P.2d 147,46 N.M. 87
• Parties: FEDERAL LAND BANK OF WICHITAv.BECK et ux.
• Court: New Mexico Supreme Court

46 N.M. 87

121 P.2d 147

FEDERAL LAND BANK OF WICHITA

v.BECK et ux.

No. 4638.

Supreme Court of New Mexico.

Jan. 14, 1942.

Appeal from District Court, Union County; Livingston N. Taylor, Judge.

Action by the Federal Land Bank of Wichita, Wichita, Kansas, a corporation, against John L. Beck, and another, to recover possession of certain real estate and for damages for the retention thereof. From a judgment in favor of plaintiff, defendants appeal.

Judgment affirmed.

In vendor's action to recover possession of realty, retained by purchasers after vendor had elected to cancel contract to convey for purchasers' failure to make required payments, wherein purchasers alleged vendor had waived right to forfeit purchasers' rights under contract without notice of intention to regard time as of the essence of contract, and allowance of a reasonable time for performance by purchasers, it was trial court's duty to submit to jury the question of whether alleged facts constituting the defense of waiver as pleaded had been proved by a preponderance of the evidence, if there was substantial evidence from which jury could so find.

A. J. Krehbiel, of Clayton, for appellants.

D. A. Paddock, of Clayton, and W. E. Pepperell, Conrad L. Ball, J. P. Flinn, and Edward H. Jamison, all of Wichita, Kan., for appellee.

BRICE, Chief Justice.

This action was brought by appellee to recover possession of certain real estate and for damages for the retention thereof. It is not a statutory action in ejectment. The jury returned a verdict in favor of the appellee and assessed its damages at the sum of $85.

On July 7th, 1937, the appellee by written contract sold, and agreed conditionally to convey, to appellant John L. Beck 1,200 acres of land for an agreed consideration of $3,600, to be paid as follows: $50 upon execution of the contract, the receipt of which was acknowledged; $550 upon approval of title, and the balance in fifteen annual payments of $200 each bearing interest at the rate of five percent per annum until paid. Conveyance was to be made when and if the full consideration was paid. It was provided in the contract that failure of Beck to make any payment when due, or if he breached any covenant or condition of the contract that appellee could, at its option, declare the contract void, in which event “interest payments and other sums paid by part(y-ies) of the second part, or other persons, to party of the first part, as provided in said agreement, shall be held and retained by party of the first part, and said sums, together with whatever payments of taxes or other assessments that may have been made by party of the second part shall be considered as liquidated damages for the breach of said agreement by party of the second part, it being mutually agreed by and between the parties that such sums shall constitute fair and adequate compensation for the damages sustained by party of the first part by reason of the breach of said agreement and for the use and occupancy of said premises by party of the second part under the terms of this agreement.”

Time was made the essence of the contract.

The appellants having (allegedly) breached the conditions and covenants of the contract, the appellee, on April 8, 1939, elected to cancel it and to retain the payments ($150) made thereon, as liquidated damages.

The defense seems to be that appellee by its acts was estopped to declare a forfeiture, and had waived its right to cancel the contract and to forfeit payments made, because of its failure to enforce strictly the provisions authorizing such cancellation and forfeiture, and for other reasons unnecessary to state here.

All assignments of error are based upon rulings of the court made in the progress of the trial. The sufficiency of the evidence to support the judgment is not questioned thereby.

[1][2] The court did not err in denying the appellants' motion for a continuance. The appellee admitted that the witness Koger, on account of whose absence the motion for continuance was urged, if present would testify to the alleged facts stated in the motion. This complies with the statute, § 105-2405, N.M.Sts.1929. It is stated under this assignment of error that the court denied appellants the right to introduce a portion of such statement. But this action of the trial court is not assigned as error and cannot be considered by us. Supreme Court Rule 12. State Tax Comm. v. Santa Teresa Land Co., 30 N.M. 298, 233 P. 839; Williams v. Kemp, 33 N.M. 593, 273 P. 12.

[3][4] We are unable to determine whether the trial court erred in overruling appellants' challenge of juror Arelleno for cause, as the voir dire examination is not in the record. A statement is made in a note by the court reporter to the effect that the juror had testified he owned stock in appellee corporation, but the conclusion of the court reporter is not sufficient. The voir dire examination should have been brought to this court as a part of the bill of exceptions.

[5] It is asserted that the trial court erred in refusing to permit appellants to fully cross examine appellee's witness Van Pelt upon “the extent of his authority to represent plaintiff (appellee).” Upon examination of the record we do not find that the court limited the cross examination of the witness. It sustained objections to numerous questions, but no error is assigned on that account. There is no basis for this assignment.

It is asserted that the court erred in refusing to give to the jury five separate requested instructions regarding the agency for appellee of the witness Van Pelt. The only evidence we find in a search of the record that tends to establish Van Pelt as an agent of the appellee for any purpose was his testimony to the effect that he was authorized to make collections from appellants of installments due on the real estate contract, and that appellee paid him a salary. We do not find any evidence that Van Pelt was an agent of the appellee for any other purpose.

[6][7] It is not shown by any argument or presentation of facts under this assignment that Van Pelt's authority as agent for this purpose was material to a decision. It is stated that appellants “were misled to their detriment by the representations made by Van Pelt regarding the attitude of appellee upon the matter of granting extensions,” but in what way and by what representations, appellants were misled to their injury by Van Pelt acting as appellee's agent, does not appear in their brief. In the absence of a statement of the substance of such testimony, with a reference to the record where it can be found, we are not authorized to review it, and therefore are unable to decide whether there was a basis for giving the requested instructions. But, disregarding the rule, we have read the testimony and find in it no basis for the requested instructions. There is no testimony that would indicate that Van Pelt at any time made any representations, assuming to act for appellee, that could have misled the appellants. His part in the transaction was a mediary who sent, received and communicated to the respective parties the messages each sent to the other. His efforts were entirely in behalf of appellants.

[8] The trial court did not err in refusing to submit to the jury for answer four certain interrogatories requested by appellants. The appellants cite no testimony which would be a basis for answers, and we have found none after a careful reading of the record.

It is next urged that “the trial court erred in failing to instruct the jury fully and clearly upon the theory of estoppel as pleaded by defendants (appellants) and as developed in the trial.”

The estoppel pleaded is as follows: “*** That defendants admit it is provided in said contract that time is of the essence thereof, but allege that because plaintiff, both by express agreement and impliedly from its acts, waived said provision of said contract, plaintiff is now estopped to assert the right to cancel said contract or forfeit defendant's rights thereunder without first having given defendants notice of its intention to regard time as of the essence of said contract.”

[9][10] The authority of the Supreme Court is limited to the correction of errors of the district court, State ex rel. Thompson v. Beall, 37 N.M. 72, 18 P.2d 249,...