Hendricks v. Hendricks

• Decision Date: 28 December 1950
• Docket Number: No. 5316,5316
• Citation: 1950 NMSC 69,226 P.2d 464,55 N.M. 51
• Parties: HENDRICKS v. HENDRICKS.
• Court: New Mexico Supreme Court

Page 464

226 P.2d 464

55 N.M. 51

HENDRICKS v. HENDRICKS.

No. 5316.

Supreme Court of New Mexico.

Dec. 28, 1950.

T. T. Sanders, Jr., S. B. Christy, IV, Roswell, for appellant.

Frazier, Quantius & Cusack, Roswell, for appellee.

SADLER, Justice.

The plaintiff (appellee and cross-appellant) sued defendant (appellant and cross-appellee) as executor of the estate of A. C. Hendricks, deceased, seeking judgment against him for the aggregate sum of sixty-five thousand ($65,000.00) dollars for moneys claimed to have been entrusted to the care and keeping of decedent on account of divers transactions, commencing more than twenty (20) years before the filing of the complaint and continuing throughout the intervening period. It was alleged the plaintiff was a younger brother of deceased, in whom he placed great confidence, personally, and as well in his business judgment, and entrusted him with the sums of money mentioned by reason of such trust and confidence. The complaint went on to say that decedent promised to keep accurate books and records of such transactions, by reason whereof the plaintiff was without detailed dates or records touching the claims asserted. The plaintiff set up in his complaint six (6) separate transactions and the amount claimed to have been received in trust by decedent as to each, aggregating the sum heretofore stated. It was for such amount that the plaintiff prayed judgment against the defendant as executor aforesaid.

The defendant by his answer interposed a general denial as well as certain affirmative defenses, one of which was the statute of limitations. Following trial the court filed its decision containing the findings of fact and conclusions of law upon which it entered judgment in the plaintiff's favor against the defendant in the sum of three thousand six hundred ninety-one and 66/100 ($3691.66) dollars. The defendant, feeling aggrieved by the judgment so rendered against him, prayed and was granted an appeal to this court for a review of such judgment. The plaintiff, likewise aggrieved as he asserted, sought and was allowed a cross-appeal from the judgment to review it for failure of the trial court to grant him judgment in greater amount than it did. So it is that we have before us a review of the whole judgment in the respects complained of by each party, upon a full and complete record of the trial and proceedings as conducted below. We first shall dispose of the claim of error presented on the appeal by defendant. Preliminary to doing so and to give an intelligent understanding of how the question raised on the appeal arose, as well as to furnish a background for disposition of the questions presented on the cross-appeal, we shall set out the findings of fact and conclusions of law found in the decision filed. They are as follows:

'Decision

'The above entitled cause having been heard by the Court, and the parties having submitted their requested findings of fact and conclusions of law and the time announced by the Court for filing said requests having now expired, the Court makes the following Decision, to-wit:

'A

'Findings of Fact as to Wage Claim

'1. That from about the middle of 1943 to the time of the death of A. C. Hendricks on January 23, 1947, the Plaintiff Ricks Young Hendricks at the special instance and request of the decedent, A. C. Hendricks, did perform work and services for the said A. C. Hendricks for the agreed stipulated price of $140 per month. That the Plaintiff did receive $40 per month of said salary, and that the remainder due, unpaid, and owing to the Plaintiff, as a debt, was the sum of $100 per month.

'2. That Plaintiff filed his claim in the Probate Court for said wages on the 12th day of February, 1948.

'3. That the Defendant has by his pleadings raised the bar of the statute of limitations as to a part of this claim. That consequently Plaintiff is entitled to recover wages at the rate of $100 per month against the Defendant for a period of 2 years, 11 months, and 20 days, being within the period of limitations.

'Conclusions of Law as to Wage Claim

'1. The Court therefore concludes as a matter of law with reference to the above wage claim that plaintiff is entitled to judgment against the defendant in the amount of $3566.66.

'B

'Findings of Fact as to Cattle Deal

'1. That on February 12, 1944, the decedent, A. C. Hendricks, or his agents, had possession of one head of cattle of the property of the Plaintiff, which head of cattle was shipped and disposed of by decedent, or his agents, on December 1, 1944.

'2. That on November 24, 1942, decedent, or his agents, had possession of and shipped and disposed of 2 head of cattle bearing the brand of Plaintiff.

'3. That on November 17, 1943, decedent, or his agents, had possession of and shipped and disposed of 1 head of cattle bearing the brand of Plaintiff.

'4. That on January 24, 1944, decedent, or his agents, had possession of and shipped and disposed of 3 head of cattle bearing the brand of Plaintiff.

'5. That on January 29, 1944, decedent, or his agents, had possession of and shipped and disposed of 1 head of cattle bearing the brand of Plaintiff.

'6. That on December 13, 1942, decedent, or his agents, had possession of and shipped and disposed of 1 head of cattle bearing the brand of Plaintiff.

'7. That on December 1, 1942, decedent, or his agents, had possession of and shipped and disposed of 1 head of cattle bearing the brand of Plaintiff.

'8. That on February 12, 1948, Plaintiff filed in the Probate Court his claim for the reasonable value of all of said cattle so possessed, shipped, and disposed of by Defendant, or his agents, but Defendant by his pleading has raised the bar of the Statute of Limitations against said claim for said cattle.

'Conclusions of Law as to Cattle Deal

'1. The Court concludes as a matter of law that Plaintiff's claim for said cattle was a debt and is barred by limitations, with the exception of the one head of cattle herein above set out in Finding of Fact No. 1, and as to which one head of cattle the court concludes as a matter of law that Plaintiff is entitled to recover judgment against the Defendant for the reasonable value thereof. The attorneys will stipulate as to the reasonable value of said one head of cattle and the amount so stipulated will be inserted in the judgment to be prepared.

'C

'Findings of Fact as to Claim Involving $506.09

'1. That as claimed by the Plaintiff, and as shown by the last entry recorded in the record books of the deceased, A. C. Hendricks, the said A. C. Hendricks did on the 13th day of February, 1933, owe Plaintiff the sum of $506.09, as a debt.

'2. That the Defendant has raised the bar of the Statute of Limitations against said claim, which claim was filed in the Probate Court on February 12, 1948.

'Conclusion of Law as to Claim Involving $506.09

'1. The Court concludes as a matter of law from the foregoing findings of fact that said claim for $506.09 is barred by the Statute of Limitations and Plaintiff is entitled to no recovery.

'D

'Findings of Fact as to Real Estate Transaction

'1. That on June 22, 1942, plaintiff and his wife executed a deed to The Hendricks Company, a partnership composed of A. C. Hendricks and others, for which A. C. Hendricks, now deceased, agreed to pay to the said plaintiff the sum of $2500, which was due and owing to plaintiff as a debt on said June 22, 1942.

'2. That the defendant by his pleading has raised the bar of the Statute of Limitations against said claim, which claim was filed in the Probate Court on February 12, 1948.

'Conclusion of Law as to Real Estate Transaction.

'1. The Court concludes as a matter of law that said claim is barred by the statute of limitations and plaintiff is not entitled to recover thereon.

'E

'General Conclusions of Law

1. That the plaintiff shall have judgment against the defendant in the sums hereinabove allowed, to-wit, on the wage claim, and on the cattle deal.

'2. All other claims filed herein by the plaintiff against the decedent's estate are disallowed either as trust transactions or as debts, for failure on the part of the plaintiff to meet his burden of proof in establishing any of said other claim or claims by a preponderance of the evidence, and for failure of sufficient corroboration against a decedent's estate as required by law; and plaintiff's requested findings of fact with respect to such other claims are hereby refused and denied, and no facts are found by the court warranting any other recovery than that hereinabove set out.

'In explanation, the Court states that since plaintiff's requested findings of fact on said other claims are refused and denied, it does not deem it necessary to give or make adverse or negative findings in favor of the defendant, and in any event the possible giving or making of such negative findings would be surplusage. The refusal to give plaintiff's findings of fact in and of itself forecloses plaintiff's right to recovery on the facts alleged as basis for recovery on such additional claims. Furthermore, defendant's requested findings of fact on the cattle deal and wage claim are not allowed, as well as all of defendant's other requested findings of fact are likewise refused and denied, all as is more fully set out in the Order of this Court filed simultaneously herewith.'

It will be observed from a reading of finding of fact A-1, the decedent, A. C. Hendricks, promised to pay the plaintiff an agreed wage or salary of $140.00 per month for work and services performed by him from about the middle of 1943 to time of the death of decedent on January 23, 1947. And from finding A-3 of the trial court it appeared that 2 years, 11 months and 20 days of such services were performed within the period of limitations for which a recovery at the agreed wage could be had. Accordingly, the judgment against defendant was for wages for the period mentioned at the rate of one hundred ($100.0...