FREAR v. ROBERTS, 5012

• Decision Date: 23 April 1947
• Docket Number: No. 5012,5012
• Citation: 51 N.M. 137,179 P.2d 998
• Parties: FREAR v. ROBERTS et al.
• Court: New Mexico Supreme Court

51 N.M. 137

179 P.2d 998

FREAR

v.ROBERTS et al.

No. 5012.

Supreme Court of New Mexico.

April 23, 1947.

[179 P.2d 998, 51 N.M. 137]

James A. Hall, of Clovis, for appellants.

Robert V. Wollard, of Santa Fe, for appellee.

McGHEE, Justice.

This is an appeal from a decree cancelling a deed executed and delivered on condition the property conveyed would not be used for business purposes. We will refer to the parties as they appeared below.

The only question presented is whether the quantum of proof is sufficient to sustain findings of fact and the judgment in a case of fraud. The findings of fact are as follows: '1. That Lot 6, block 23, of the Original Townsite of Clovis, is located in a residential district, on Gidding Street, in the City of Clovis, New Mexico.

'2. That the plaintiff, E. J. Frear, is the owner of, and resides upon a lot adjacent to said lot 6, block 23, and in order to prevent the construction of a business establishment of any kind upon said lot 6, purchased the same.

'3. That the said plaintiff, E. J. Frear, thereafter listed said lot 6, block 23, for sale as residential property with William N. Nelson, a real estate broker of Clovis, New Mexico; and that said real estate broker then caused a sales contract to be negotiated for the sale of said lot 6 to the defendant, M. C. Roberts, as residential property.

'4. That said sales contract rested partly in writing and partly in parol; that in addition to said written portion, the defendant, with the intention to deceive the plaintiff, fraudulently represented to the plaintiff, as an inducement for the plaintiff to enter into said contract, that said defendant was then purchasing said lot 6 for the purpose of building an apartment house or duplex of residential type thereon, and that said lot 6 would never be used for business purposes in any manner.

'5. That the defendant, M. C. Roberts, when making said oral representations to the plaintiff, did not have the present intention to perform said contract.

'6. That plaintiff, relying upon said representations and being deceived thereby, was induced to enter into said sales contract and to deliver a deed to said lot 6 to the defendant, M. C. Roberts.

'7. That, relying upon the fraudulent representations of the defendant, M. C. Roberts, as aforesaid, and being deceivedthereby, the plaintiff has been materially injured.

'8. That shortly after delivery of the deed by the plaintiff to the defendant to said lot 6, the defendant entered into a sales contract therefor with the Southern Union Gas Company to purchase the same to be used for business purposes.

'9. That the defendant, M. C. Roberts, in violation of the terms of said contract, now threatens to use said lot 6 for establishment of a business building thereon, and unless restrained by the Court, will do so.

'10. That the construction of a business building on said lot 6 would irreparably injurethe plaintiff in the use and occupancy of his residential property adjacent to said lot 6, upon which he now resides, for which injury plaintiff has no adequate remedy at law.

'11. That when plaintiff learned the real purpose for which the defendant purchased said lot 6, a proper tender was made by the plaintiff to the defendant of the purchase price therefor, which was refused by the defendant.'

In Berrendo Irrigated Farms Co. v. Jacobs, 23 N.M. 290, 300, 168 P. 483, 486, we approved and here reaffirm as the correct rule on the quantum of proof required to establish fraud the following from Smith on Fraud, par. 264, and Redwood v. Rogers, 105 Va. 155, 53 S.E. 6: 'Where it is sought to recover for fraudulent representations in regard to the sale of land, there should be the clearest proof of the fraudulent representations, and the evidence must show that the contract was founded upon them.' Smith on Fraud, supra.

'The charge of fraud is one easily made, and the burden is upon the party alleging it to establish its existence, not by doubtful and inconclusive evidence, but clearly and conclusively. Fraud cannot be presumed. It must be proved by clear and satisfactory evidence. It is true that fraud need not be proved by positive and direct evidence, but may be established by facts and circumstances sufficient to support the conclusion of fraud. But whether it be shown by direct and positive evidence, or established by circumstances, the proof must be clear and convincing, and such as to satisfy the conscience of the chancellor, who should be cautious not to lend too ready an ear to the charge.'

With this rule in mind we examine the record and quote therefrom the following:

'Q. Now, Mr. Frear, what conversation took place, if any, between you and Mr. Roberts? A. I told him * * * that is, I told Mr. Roberts, that I had bought the property for the protection of may home on the corner there, and if he bought it we didn't want anything on there but residence property. Mr. Roberts said that would be alright; that he would put up residential property only, and he said he would like to put up an apartment house on it.'

And on cross-examination:

'Q. You told him you didn't want a filling station on there, is that right? A. I told him I didn't want a filling station; I told him I didn't want any business property on it.

'Q. He told you he wouldn't put a filling station there? A. He told me he would put an apartment house on the lot.

'Q. You were really interested in a filling station because of the fact there was one two blocks below you, or just beyond the Baptist Church, isn't that right? A.No. I didn't want business property there. Gidding street is not a business street.

'Q. You are sure you didn't want business property? A. Yes.'

And on cross-examination:

'Q. Without repeating the conversation, was it (the lot) listed for sale with him (Nelson) as residential property? (Bracketed words added.) A. Yes sir; absolutely.'

From the testimony of Mrs. Frear:

'Q. What conversation did you have, or what took place at that time, as you recall? A. The day Mr....