Garcia v. Color Tile Distributing Co., No. 7687

• Docket Nº: No. 7687
• Citation: 75 N.M. 570, 1965 NMSC 139, 408 P.2d 145
• Case Date: November 22, 1965
• Court: Supreme Court of New Mexico

Page 145

408 P.2d 145 75 N.M. 570 Isaac GARCIA and Pola Garcia, his wife, Plaintiffs-Appellees,
v.
COLOR TILE DISTRIBUTING COMPANY, a foreign corporation,
Defendant-Appellant. No. 7687. Supreme Court of New Mexico. Nov. 22, 1965.

[75 N.M. 571]

Page 146

Threet, Threet, Glass & King, Albuquerque, for appellant.

Page 147

Charles E. Barnhart, Albuquerque, for appellees.

CARMODY, Chief Justice.

The defendant in the trial court has appealed from a judgment rendered against it by the district court sitting without a jury. With one exception hereinafter discussed, the appeal relates entirely to an attack[75 N.M. 572] on certain of court's findings and the contention that the court failed to adopt requested findings to the contrary. For the reasons hereafter stated, we affirm the judgment of the trial court.

Plaintiffs (husband and wife) contracted with the defendant to have laid some Armstrong's Hydrocord Linoleum in a portion of the plaintiffs' house. Prior to the installation of the linoleum, the plaintiffs placed a quarter-inch plywood covering over the existing concrete floor. This was done after consultation with the employees of the defendant. The defendant then completed the installation of the linoleum and guaranteed it, but within a matter of days the floor began to buckle.

Without setting out the findings which are attacked, suffice it to say that the defendant claims that the undisputed evidence as to the size of concrete nails used to affix the plywood to the concrete base was to the effect that the defendant instructed the plaintiffs to use three-quarter-inch nails, not five-eighths-inch nails, maintaining that if the plaintiffs had done so the plywood would have adhered to the concrete surface and no buckling would have resulted. In this same connection, the defendant also attacks the trial court's finding that the sole cause of the buckling was the fact that water would be drawn through the concrete, thereby causing a separation of the plywood plies and that this in turn would cause the linoleum to buckle.

The trial court's finding was to the effect that the sole cause of the failure of the floor was the negligence of the defendant, whereas the defendant claims that the sole cause was the faulty installation of the plywood subflooring.

Before proceeding to the disposition of the defendant's basic attack on the findings, we would observe that there is no evidence that the plywood plies actually separated, or that the linoleum was not proper. Such statements were in the nature of evidentiary findings and were in no sense necessary for the trial court's decision. The making of such findings, however, does not require a reversal if there remain sufficient findings upon which to sustain the judgment. See Koeber v. Apex-Albuq Phoenix Express, 1963, 72 N.M. 4, 380 P.2d 14, 29 A.L.R.3d 1368; Melfi v. Goodman, 1963, 73 N.M. 320, 388 P.2d 50; Board of County Com'rs of Dona Ana County v. Little, 1964, 74 N.M. 605, 396 P.2d 591; and Paulos v. Janetakos, 1939, 43 N.M. 327, 93 P.2d 989. It is implicit in the findings made by the trial court that the defendant knew, or should have known, that mosturre would be drawn through the concrete and that this, in turn, would cause a buckling of the plywood unless the...