Garvin v. Gordon, 3661.

Decision Date07 September 1932
Docket NumberNo. 3661.,3661.
Citation14 P.2d 264,36 N.M. 304
PartiesGARVINv.GORDON et al.
CourtNew Mexico Supreme Court


Syllabus by the Court.

On question of sufficiency of evidence, reviewing court merely determines whether evidence furnishes substantial support for verdict.

Plaintiff, having consented to litigate issuable defense, not pleaded, and having failed to sustain issue, could not urge that defense was unavailable because not pleaded.

Failure to procure licence held not to preclude real estate broker's recovering compensation for sale effected during period of omission (Comp. St. 1929, § 81-101 et seq.).

1. This court will not protract its examination of the evidence beyond the point of discovering in it substantial support for the verdict returned, in considering the point urged for reversal that the verdict lacks such support.

2. A party may not, after consenting to litigate an issuable defense, not pleaded, upon failing to sustain the issue through want of proof, urge that the defense is unavailable because not pleaded.

3. Failure to procure the license provided by section 81-102, Comp. 1929, after payment of the occupation tax therein imposed upon real estate dealers, will not deny compensation to such dealer for a sale effected during the period of the omission, at least if the sale be consummated before incurring the penalties for such failure prescribed by section 81-108, Comp. 1929.

Appeal from District Court, Torrance County; Numa C. Frenger, Judge.

Action by E. L. Garvin against Z. V. Gordon and another. Judgment for plaintiff, and defendants appeal.


Plaintiff, having consented to litigate issuable defense, not pleaded, and having failed to sustain issue, could not urge that defense was unavailable, because not pleaded.

George W. Prichard, of Santa Fé, for appellants.

J. S. Vaught, of Albuquerque, for appellee.


The appellee sued appellants in the district court of Torrance county for a balance of $265 claimed to be due him as a commission for bringing about a sale of the latter's farm. He pleaded an express agreement to pay him as compensation for such services 5 per cent. of the sale price of $6,000, alleged a payment of $35 on account thereof, and claimed a balance due in the amount above stated.

The trial produced only one controverted issue of fact between the parties going to the cause of action, and that as to whether payment of the commission was conditioned upon the purchaser fulfilling the contract of purchase which admittedly was entered into but never fulfilled. The appellants, who were husband and wife, affirmed with positiveness that under the agreement the commission was payable only in the event the purchasers paid a certain note, the first to mature, in the sum of $300, representing a part of the purchase price; and that the $35 so-called credit conceded by appellee in fact was a loan by them to him. The purchaser and his wife, and also another witness, the father of Mrs. Pyburn, one of the purchasers, testified to statements by appellee which, if made, amounted to admissions by him that the agreement to pay a commission was subject to the condition claimed by appellants.

It appeared that the contract of purchase was never fulfilled and that the escrow papers evidencing the transaction, except a mortgage on some Arkansas lands given appellants by the purchasers as additional security for performance of the contract, were redelivered into the hands of the respective parties about a year or a year and a half following the transaction. This mortgage at time of trial was still retained by appellants as security, so they claimed, for advancements and credit of approximately $1,500 extended by them to the purchasers while residing on the farm in question.

[1] The appellee, on the other hand, affirmed with positiveness the existence of an agreement to pay commission, without condition attached. He directly contradicted the assertion by one of the appellants that the $35 item was a loan, declaring it to have been a payment on account of the commission claimed. He furthermore flatly denied the statements attributed to him, by certain witnesses for appellants, tending to contradict his recital at the trial of the agreement theretofore made. Thus a clear-cut issue of fact was presented for the consideration of the jury. While the appellants had the greater number of witnesses, two of them indebted to appellants, it is true, yet competent, and all presumably credible, the jury chose to accept appellee's version of the matter, and returned its verdict accordingly. Certainly we cannot say that the jury's verdict is without substantial support in the evidence. And, upon the assertion of a claim that it is without such support, our examination of the evidence must cease when we recognize in it substantial support for the verdict returned.

The next point relied upon for reversal involves the proposition that appellee's right to compensation was defeated by his failure to show himself in possession of a broker's license to engage in the real estate business at the time of the transaction sued upon. The appellee testified he had been engaged regularly in such business as an occupation for about twelve years, thus appearing to have been subject to the license fee provided by section 81-102, Comp. 1929. The question first arose at the trial when appellee closed his case and rested. Counsel for appellants then moved for a directed verdict upon the ground that, the complaint failing to show that he was a broker, and the evidence disclosing that he was, the omission to prove that he had procured the state license was fatal to recovery.

Thereupon counsel for appellee stated to the court that his client did hold a regular state license at the time of the transaction in question, and asked leave of the court to reopen his case for the purpose of so proving. The leave requested was granted with a statement by the court that, if the proof promised were made, appellants' motion for directed verdict would be denied, and, if not made, further consideration would be given it. Appellee later actually made some effort to supply the proof for which his case was reopened. It developed, however, that his counsel was under a misapprehension as to the facts...

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9 cases
  • Schoene v. Hickam, S-T
    • United States
    • Missouri Supreme Court
    • December 13, 1965
    ...'The illegality inhering at the inception of such contracts taints them throughout and effectually bars enforcement.' Garvin v. Gordon, 36 N.M. 304, 14 P.2d 264, 266. As stated in Mueller v. Burchfield, 359 Mo. 876, 224 S.W.2d 87, l. c. 88, 13 A.L.R.2d 153: 'The reason for denying relief to......
  • Martinez v. Research Park, Inc.
    • United States
    • New Mexico Supreme Court
    • April 5, 1965 whole or in part, on a violation by him of the criminal or penal laws. Desmet v. Sublett, 54 N.M. 355, 225 P.2d 141; Garvin v. Gordon, 36 N.M. 304, 307, 14 P.2d 264. If Marco or Roache, while unlicensed, engaged in a single act prohibited by the statute, they were guilty of a It is, of c......
  • Conway v. San Miguel County Board of Education
    • United States
    • New Mexico Supreme Court
    • February 2, 1955
    ...absence of a special plea is cured. 1953 Comp. Sec. 21-1-1 (15(b). Posey v. Dove, 57 N.M. 200, 257 P.2d 541. See, also, Garvin v. Gordon, 36 N.M. 304, 14 P.2d 264 and compare Oliver v. Enriquez, 17 N.M. 206, 124 P. Moreover, even if the 1934 deed be disregarded, along with the holding of th......
  • Banes Agency v. Chino
    • United States
    • New Mexico Supreme Court
    • November 4, 1955
    ...findings is substantial and, hence, they are to be taken as the facts upon which the appeal will be heard in this Court. Garvin v. Gordon, 36 N.M. 304, 14 P.2d 264. It was the privilege of the trial judge to reconcile inconsistent statements of the witness, Chino, and say when he spoke the ......
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