Gottwald v. Weeks

• Decision Date: 19 October 1936
• Docket Number: No. 4153.,4153.
• Citation: 41 N.M. 18,63 P.2d 537
• Parties: GOTTWALD et al.v.WEEKS et al.
• Court: New Mexico Supreme Court

41 N.M. 18

63 P.2d 537

GOTTWALD et al.

v.WEEKS et al.

No. 4153.

Supreme Court of New Mexico.

Oct. 19, 1936.On Rehearing Dec. 7, 1936.

Appeal from District Court, Dona Ana County; James B. McGhee, Judge.

Suit by Julia L. Gottwald and others against W. R. Weeks and Dora D. Weeks. From an adverse decree, the plaintiffs appeal.

Reversed and remanded, with instructions.

Statute providing that, in suit by or against heirs, executors, administrators, or assigns of deceased, opposite or interested party to suit should not obtain verdict, judgment, or decision by his own evidence in respect to matter occurring before death of deceased, unless such evidence was corroborated by some other material evidence, was satisfied, where books of party to suit against heirs of deceased corroborated credits due him from deceased. Comp.St.1929, § 45-601.

Edward C. Wade, Jr., of El Paso, Tex., for appellants.

W. C. Whatley, of Las Cruces, for appellees.

BRICE, Justice.

From a decree in an accounting following a mutual rescission of a contract for purchase and sale of real estate, this appeal is prosecuted. We will recite only facts necessary to a decision.

In the year of 1927 appellees (husband and wife) contracted to sell and convey to H. M. Gottwald and the appellant Julia L. Gottwald (husband and wife) certain real estate in consideration of $12,700 paid and to be paid. Gottwald died November 1, 1931, and appellant Julia L. Gottwald and the other appellants (his minor children) are his heirs at law and succeeded to his estate. This action was brought in January, 1932, to cancel the contract of sale and purchase and for an accounting. After the suit was filed, appellants abandoned the land, and appellees immediately took possession and conveyed it by warranty deed to another.

[1] The court concluded there was a mutual rescission of the contract and that the parties should be placed in statu quo. The parties acquiesced in this conclusion and it is binding here, though we do not determine whether it is correct. But appellants disagree with the court's conclusion that such restoration entitled appellees to a credit for a 50 per cent. depreciation in the market value of the land, resulting from the economic depression, which was allowed them by the court. The conclusion of the court is stated in the following language: “That plaintiffs, at the time of the institution of this suit, were not entitled to rescind, but that by reason of the conduct of defendants in taking possession of said premises, and conveying same away, as the Court finds was done in June, 1932, the defendant should be held to have acquiesced in such rescission, so that it was a mutual rescission of said contract, which entitled plaintiffs to recover back all that had been paid on the purchase price, after accounting for the rental value during the time they were in possession, and for the depreciation in the market value of the property between the time of entering into the alleged contract and the time of the rescission by the plaintiff in 1932.”

[2] The court erred in allowing the credit complained of. The restoration of the status quo ante contemplates the return to each of the parties of that with which he parted, with compensation for its use or injury. This includes the return of the purchase money paid and interest thereon to the purchaser by the vendor, and the payment of the fair value of the use of the land, generally reckoned as its fair rental value, and consequential damages for waste or other injury to the real estate, caused by acts of the purchaser, to be paid by him to the vendor. The territorial Supreme Court in Daly v. Bernstein, 6 N.M. 380, 28 P. 764, 767, stated: “*** ‘In statu quo’ means being placed in the same position in which a party was at the time of the inception of the contract which is sought to be rescinded. Now, at that time the defendant had merely the possession of the place. If the jury believed the testimony, that was delivered to him, and hence he was in statu quo.”

[3] There are but few authorities on the identical question here presented, but these hold that the purchaser is not chargeable with a depreciation in the market value of the real estate caused by economic conditions.

“On the rescission of a contract for the sale of land, the purchaser will be held to account for all waste committed by him on the premises while in his possession, such as the cutting and removal of timber, the destruction of vines or fruit trees, to the cultivation of which the land was chiefly devoted, or the removal of buildings which were upon the land at the time he came into possession. And generally, the purchaser, on such rescission, will be chargeable with any deterioration in the value of the land caused by his mismanagement, improvidence, injudicious cultivation of it, or culpable negligence. But it is not an invariable rule that he must restore the land in the same condition in which he received it, and the fact that it may have depreciated in value will be no obstacle to his rescission of the purchase, good cause therefor existing, when that circumstance is not in any way attributable to his own act or fault.” 2 Black on Rescission and Cancellation, § 633.

“‘Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made.’ The words ‘same position,’ found in the section, are used with reference to the subject-matter of the contract; and the fact that the market value of the property may have depreciated while out of the possession of the vendor does not defeat the vendee's right of rescission. If the property can be returned by the vendee in substantially the same condition as when he received it, then the requirements of this section of the Code are fully satisfied.” Goodrich v. Lathrop, 94 Cal....