Flores v. Baca.
| Decision Date | 24 September 1919 |
| Docket Number | No. 2233.,2233. |
| Citation | 184 P. 532,25 N.M. 424 |
| Court | New Mexico Supreme Court |
| Parties | FLORESv.BACA. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Under the provisions of section 2181, Code 1915, every written contract imports a consideration, and in a suit upon such a contract it is not necessary to allege a consideration.
A contract which is not entirely in writing is regarded as an oral or verbal contract, and a complaint, in a suit upon such a contract, which fails to allege a consideration, is fatally defective.
Appeal from District Court, Socorro County; M. C. Mechem, Judge.
Suit on alleged written contract by Estevan Flores against Hilario Baca. Demurrer to second amended complaint sustained and judgment for defendant, and plaintiff appeals. Affirmed.
A contract which is not entirely in writing is regarded as an oral or verbal contract, and a complaint, in a suit upon such a contract, which fails to allege a consideration, is fatally defective.
M. C. Spicer, of Socorro, for appellant.
Neill B. Field, of Albuquerque, for appellee.
Appellant instituted suit in the district court of Socorro county against the appellee on a contract which he alleged to have been in writing. The contract was written in Spanish, the English translation of the same being as follows:
“Both parties hereto do certify that the undersigned Ylario Baca, party of the first part, and Estevan Flores, party of the second part, have agreed, the first party to sell the number of 158 animals between steers, dry cows and cows with calves for the value of $3,650.00, which said deal shall be consummated at the time of the getting of purchaser, and the said Estevan Flores, party of the second part, shall deliver to the said party of the first part the sum of $3,650.00 as soon as the said deal is consummated, according to the conditions, and without any refusal.
Signed by both parties this 14th day of November, 1913, before a witness.
Hilario Baca.
Estevan Flores.”
The complaint attempted to state either two or three causes of action upon the contract. Appellant apparently contends there were two causes of action stated, while the appellee assumes there was an attempt to state three causes of action. It is difficult to determine from the complaint whether the pleader was attempting to state two or three causes of action. That question, however, is not material. By each count of the complaint appellant alleged that under the contract entered into between the parties the appellant agreed to find a purchaser for the cattle, and that he was to receive for his services the amount of the purchase price in excess of $3,650; that appellee was to sell the cattle to the purchaser found by appellant.
To the second amended complaint appellee filed a demurrer, based upon the failure of the complaint to state facts sufficient to constitute a cause of action, and it was particularly specified that the complaint was defective in that it failed to allege that there was any consideration for the contract. The demurrer was sustained. Appellant elected to stand on his complaint, and judgment was entered for appellee.
Appellant contends that the action of the court was erroneous in that, as the cause of action was upon a written contract, it was unnecessary to allege the consideration, because such allegation was obviated by section 2181, Code 1915, which reads as follows:
“Every contract in writing hereafter made shall import a consideration in the same manner and as fully as sealed instruments have heretofore done.”
If the suit were upon a written contract, clearly appellant's contention would be a correct; for, under the provision of the Code above quoted, every written contract imports a consideration, and therefore it is not necessary that a consideration should be specifically averred. This has been the uniform construction of the above statutory provision by the courts of other states where such provision exists, and it was so held in the case of Bank v. Insurance Co., 16 N. M. 66, 113 Pac. 815. See Georgia Home Insurance Co. v. Boykin, 137 Ala. 350, 34 South. 1012; Henke v. Eureka Endowment Ass'n, 100 Cal. 429, 34 Pac. 1089; Williams v. Hall, 79 Cal. 606, 21 Pac. 965; Roller v. Ott, 14 Kan. 609; County of Montgomery v. Auchley, 92 Mo. 126, 4 S. W. 425; Fleming v. Mulloy, 143 Mo. App. 309, 127 S. W. 105; Noyes v. Young, 32 Mont. 226, 79 Pac. 1063. Hence if the suit in question was upon a written contract and the only point upon which the demurrer was sustained was the failure to...
To continue reading
Request your trial
-
ADAMS v. COX
...partly oral, and that it is not alleged that there was any consideration for the making of the contract. It is true that in Flores v. Baca, 25 N.M. 424, 184 P. 532, it is held that where parol evidence is required to complete the contract it is to be regarded as an oral or verbal contract, ......
-
Rubenstein v. Weil, 7663
...makes the option agreement sufficient to withstand the attack of a motion to dismiss for failure to allege consideration. Flores v. Baca, 25 N.M. 424, 184 P. 532. Defendants suggest that the formula for computing the purchase price of the one-half interest in the 2010.52-acre tract, express......
-
Franklin v. Harper.
...may be raised at any time. Appellee contends that the mortgage itself imports consideration, citing Code 1915, § 2181, and Flores v. Baca, 25 N. M. 424, 184 P. 532. Hence, it urges, no consideration need be shown by the complaint. Appellant replies, however, that this is not a case of mere ......