Fraser v. State Sav. Bank

• Decision Date: 04 December 1913
• Citation: 137 P. 592,18 N.M. 340
• Parties: FRASERv.STATE SAVINGS BANK ET AL.
• Court: New Mexico Supreme Court

18 N.M. 340

137 P. 592

FRASER

v.STATE SAVINGS BANK ET AL.

Supreme Court of New Mexico.

Dec. 4, 1913.

Syllabus by the Court.

The court is only required to find the ultimate facts in controversy, raised by the issues in the case, and is not required, nor is it proper, to set out the evidence upon which it relies in determining such ultimate facts.

Findings are not to be construed with the strictness of special pleadings. It is sufficient if, from them all, taken together with the pleadings, the court can see enough upon a fair construction to justify the judgment of the trial court, notwithstanding their want of precision and the occasional intermixture of matters of fact and conclusions of law.

Where the trial court hears all the witnesses testify, and is thus able to observe their manner and demeanor while testifying, the appellate court will not review the evidence further than to determine whether or not the findings are supported by substantial evidence, in the absence of such an overwhelming weight of evidence against such findings as would clearly show that the trial court erred in its conclusions drawn therefrom; and in an equity case, where the court hears the witnesses ore tenus, there is no reason for a departure from the rule.

Mere inadequacy of consideration is not sufficient, in and of itself, to avoid a contract.

Where parties to a contract construe it as having created a partnership relation, and act upon such construction, the court will not, after rights have accrued thereunder by reason of such construction, give to the contract a different construction, which would be at variance with the understanding of the parties to it.

Appeal from District Court, Taos County; T. D. Leib, Judge.

Action by William Fraser against the State Savings Bank and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Findings are to be liberally construed in support of the judgment, and all of the findings are to be considered together, and, if possible, reconciled so as to prevent any conflict on material points.

On December 16, 1910, the appellant and appellees John B. Bidwell and A. Clarence Probert made and executed the following agreement, viz.:

“This agreement, made and entered into this 16th day of December, 1910, by and between William Fraser, as party of the first part, and John B. Bidwell and A. Clarence Probert, as parties of the second part, that for and in consideration of the sum of two thousand dollars and other more valuable consideration we hereby form ourselves into a joint and copartnership under the firm name and style of Fraser, Bidwell & Probert for the purposes of developing, improving, selling, and disposing of the mineral properties of the said William Fraser within a period of two (2) years' time from this date, or as long thereafter as the said William Fraser may agree to and with said parties of the second part; and in further consideration for the time and moneys expended by the said John B. Bidwell and A. Clarence Probert a warranty deed has been executed and given to each one of the said parties of the second part, conveying an undivided one-third interest in and to all of said mining properties belonging to the said William Fraser, and if said mining properties are not sold or disposed of within the said period of time mentioned above, then said warranty deeds are to be void and of no effect, and the said mining properties mentioned in said warranty deeds are to revert back to the said William Fraser.

It is further hereby mutually understood and agreed that in the event of an expiration or forfeiture of this agreement or contract that all moneys expended by the said John B. Bidwell and A. Clarence Probert, parties of the second part, that the said William Fraser hereby agrees to reimburse and pay back the whole amount of said moneys in the form of a lien against all of said properties mentioned in said warranty deeds, so that the said John B. Bidwell and A. Clarence Probert shall not be out any moneys that were expended in this copartnership or transaction by them.

In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.

[Signed] William Fraser. [Seal.] [Signed] John B. Bidwell. [Seal.] [Signed] A. Clarence Probert. [Seal.]

Signed, sealed and delivered in presence of

[Signed] J. Wight Giddings. [Signed] Fidel Cordoba, Jr. [Signed] Enrique Gonzales.”

On the same day, and as part of the same transaction, appellant made, executed, and delivered to each of the above-named appellees a warranty deed, signed by appellant and his wife, by which he conveyed to each, respectively, an undivided one-third interest in and to all his mining properties therein named, and also a like interest in and to a toll road owned by him in the Rio Hondo Cañon leading to said mining properties and the grantor's rights in the Laroux grant. On the same day, or shortly thereafter, Bidwell placed to Fraser's credit in the Taos Savings Bank, or applied on Fraser's debts, approximately $2,000.

Thereafter, on February 18, 1911, Fraser, Bidwell, and Probert made and entered into a written contract with Charles T. Martin. by which they agreed to convey to him, for the sum of $77,500, all the property above mentioned. The contract was signed by Fraser, Bidwell & Probert, a copartnership, by each of the individuals composing the alleged partnership, and by Martin. By the terms of the contract $20,000 was to be paid in cash and the balance was to be paid in two installments, at stated times. Pursuant to the contract, the $20,000 was paid, which was turned over to Probert, and by him deposited in the Taos Savings Bank, out of which sum all of Fraser's debts were paid, amounting to approximately the sum of $10,000, and some cash was distributed to each of the parties to the so-called partnership agreement by Probert. Deeds to the property were executed by the three parties, as required by the contract, which were placed, under the contract, in escrow with the Hanover National Bank of New York City, for delivery to Martin upon compliance by him with the terms of the contract. Subsequently Martin paid to the Hanover National Bank the first installment of $18,500, as required by the contract, which payment was made in September, 1911.

Immediately prior to such payment, Fraser instituted this suit in the lower court for the dissolution of the alleged copartnership between Fraser, Bidwell, and Probert, the rescission of the two deeds for one-third interest each in Fraser's property to Probert and Bidwell, the accounting for $20,000, part of which had been taken by Bidwell and Probert with proper commission allowances to Probert and Bidwell for their services quantum meruit, and their reimbursement for their expenditures under the copartnership agreement, the appointment of a receiver to carry out the undertaking with Charles T. Martin, the injunction of Probert and Bidwell and the State Savings Bank from interfering with Fraser in carrying out the contract with Martin, and certain modifications thereof to which Fraser alone had agreed, and to restrain Probert and Bidwell from directing the Hanover National Bank not to receive the payment of $18,500 about to fall due, as modified by certain agreements made by Fraser, individually, and the authorization of the receiver to take and hold, under proper bond, the money Martin should pay under said contract. The basis of the complaint was fraud, in that advantage had been taken by Bidwell and Probert of Fraser's weakened mental condition in the transaction.

The appellees answered, denying all the allegations of fraud and overreaching and the weakened mental condition of Fraser, and alleged full performance of the contract on their part. They also set up fraud on Fraser's part in his attempted dissolution of the partnership agreement.

Charles T. Martin intervened, for the purpose of securing advantage of certain modifications in the original contract of purchase, made by Fraser just prior to the institution of this suit.

B. G. Randall, receiver of the Taos Savings Bank, also intervened for the purpose of subjecting Probert's interest in the funds, should he ultimately be adjudged entitled thereto, to certain indebtedness owing by him to the bank.

Trial was had to the court in equity, which found the issues in the main case in favor of Bidwell and Probert, and against Fraser, and in favor of Randall, receiver, upon his claim against Probert. The intervention of Martin was determined against him. The plaintiff, Fraser, appealed to this court, as likewise did the intervener, Martin. Subsequently the appeal as to Martin was dismissed, at his request.

Additional facts appear in the opinion.

Renehan & Wright, of Santa Fé, for appellant.

A. C. Voorhees, of Raton, and Frank T. Cheetham, of Taos, for appellees.

ROBERTS, C. J. (after stating the facts as above).

While many claimed errors are assigned, we will confine our consideration to those only which appellant has discussed in his brief and upon the hearing of the cause in this court.

Complaint is first made that the findings of fact made by the trial court are mere conclusions of law, and therefore the decree made is inoperative, because not supported by findings; such findings having been requested by appellant. It would require unnecessary space to incorporate all the findings of fact and conclusions of law made by the trial court. It is perhaps sufficient to state that the court found that the parties entered into the so-called partnership agreement set out in the statement of facts, on the date herein named; that pursuant to such partnership agreement Fraser and wife made, executed, and delivered to Bidwell and Probert deeds to one-third interest, each, in and to the property described in the complaint; that Bidwell and Probert performed all the conditions of said agreement on their part to be performed; that there was a good and...