Goldenberg v. Village of Capitan, 5300

• Decision Date: 10 February 1951
• Docket Number: No. 5300,5300
• Citation: 1951 NMSC 9,55 N.M. 122,227 P.2d 630
• Parties: GOLDENBERG v. VILLAGE OF CAPITAN.
• Court: New Mexico Supreme Court

Page 630

227 P.2d 630

55 N.M. 122

GOLDENBERG v. VILLAGE OF CAPITAN.

No. 5300.

Supreme Court of New Mexico.

Feb. 10, 1951

Brenton & Hall and Frank C. Boyce, all of Carrizozo, for appellant.

Irwin S. Moise, Lewis R. Sutin, Albuquerque, for appellee.

COMPTON, Justice.

The case is before us for a second time. 53 N.M. 137, 203 P.2d 370. It was remanded for a new trial, particularly for a determination of the question whether the contract of employment by which appellee was to perform services as a consulting engineer was affected by article 8-1707(3), Bureau of Naval Personnel, relating to Naval Reserve Personnel placed on active duty in time of war, which reads: 'When so placed on active duty, it is expected that officers and men will devote their whole time to naval duties and shall not engage in private employment, except in such cases as may be specifically authorized by the Bureau of Naval Personnel.'

The deposition of Admiral Randall Jacobs, U.S.N. (Ret.), then Chief of Bureau of Naval Personnel, was admitted in evidence, after which appellee moved for a summary judgment. In his supporting affidavit, appellee admits that he did not have permission from the Bureau to engage in private employment. He explains, however, that had he made such request, the same would have been granted. Vice Admiral Jacobs also gave as his opinion that upon request, permission would have been favorably considered and granted but it would have required thirty days to process and finally pass on the application.

The contract required appellee's services over a period of years, a part of which was performed previous to his entry upon active duty.

Appellee says that 90% of the work required under the contract could have been done at Mobile and that not more than 10% of his time would have been required at Capitan, and that at all times his services were available, and not having been called, there was no purpose in requesting leave.

Obviously, appellee mistakes the force of the regulation. Its effect is not to be dispelled by showing what might have been done. Such contingency cannot be read into it. The inhibition is against private employment anywhere without permission previously authorized. The regulation has the force of law, and a party may not maintain an action if he must rely in whole or in part on a violation by him of some statutory regulation in order to maintain his cause of action. Hogue v. Superior Utilities, Inc., 53 N.M. 452, 210 P.2d 938; Desmet v. Sublett, 54 N.M. 355, 225 P.2d 141.

In Havens v. Rochester Ropes, Inc., 267 App.Div. 394, 46 N.Y.S.2d 534, 536; Id., 293 N.Y. 659, 56 N.E.2d 256, the plaintiff had been employed to call upon aircraft manufacturers for the sale of its products, aircraft cables. His duties required him to call in person upon such manufacturers and to keep in touch with them by telephone, correspondence, etc. The plaintiff was called into active duty as a Lieutenant-Commander in the United States Naval Reserve. He contended that the change of status did not prevent him from continuing his obligation under the contract. The defendant took the position that it would be unlawful to continue the plaintiff in its employ and, further, that he could not because of his full time naval service, discharge the duties as contemplated by the contract. A judgment for plaintiff was reversed on the law, the opinion stating: 'The jury found a verdict for plaintiff, and thereby implied that despite his naval service he was able to continue to represent the defendant as required by the contract. I think the finding is contrary to the evidence and the weight of the evidence; but the disposition of this appeal does not rest on that ground. The contract became, in law, impossible of performance by plaintiff. His obligations required him to make personal calls on manufacturers within the territory lying, roughly, east of the Mississippi River. Because of his obligations to the Navy it is impossible for him to fulfill this obligation. It is true that it does not appear that after June, 1942, any specific occasion arose requiring him to travel on the defendant's behalf to a point more than twenty-five miles from his naval station. The necessity, however, for showing any such requirement was eliminated by plaintiff's theory that he was wrongfully discharged in June. The concession that plaintiff would require a superior officer's permission for an extended trip indicated that by his naval service a situation came about whereunder plaintiff's ability to perform was made conditional; and the condition was never assented to by defendant. On any specific occasion defendant should not be required to await the pleasure of a superior naval officer to determine whether or not its employee may travel in furtherance of defendant's business. Impossibility of performance, as viewed in law, does not mean absolute impossibility, but refers to a situation in which performance is impracticable without undue disturbance of normal operations of trade or commerce. Restatement, Contracts, Sec. 454. When the availability of the service of its employee was made to depend upon the consent of a third party the defendant was not only confronted with a condition which it had never accepted but with a situation which entitled it to believe that reasonable performance by its employee had become impossible.'

We do not suggest that appellee's entry upon active duty with the Naval Personnel terminated his contract. We simply hold that his failure to obtain the required...