Institute for Essential Housing, Inc. v. Keith

• Decision Date: 11 April 1966
• Docket Number: No. 7759,7759
• Citation: 1966 NMSC 67,416 P.2d 157,76 N.M. 492
• Parties: INSTITUTE FOR ESSENTIAL HOUSING, INC., a New Jersey Corporation, Defendant-Cross-Plaintiff and Appellant, v. Clifford G. KEITH and Annie M. Keith, his wife, Defendants-Cross-Defendants and Appellees.
• Court: New Mexico Supreme Court

Page 157

416 P.2d 157

76 N.M. 492

INSTITUTE FOR ESSENTIAL HOUSING, INC., a New Jersey Corporation, Defendant-Cross-Plaintiff and Appellant, v. Clifford G. KEITH and Annie M. Keith, his wife Defendants-Cross-Defendants and Appellees.

No. 7759.

Supreme Court of New Mexico.

April 11, 1966.

Rehearing Denied July 18, 1966.

Boyce & Fettinger, Alamogordo, for appellant.

Frazier, Cusack & Schnedar, Roswell, for appellees.

NOBLE, Justice.

This action was commenced as one to foreclose materialmen's liens in connection with the construction of the Keith home, but by cross-complaint Institute for Essential Housing, Inc. (hereafter termed I.E.H.) sought foreclosure of a note and mortgage executed by the Keiths and allegedly given to I.E.H. to finance the house. The material liens are not now an issue. I.E.H. has appealed from a summary judgment dismissing its cross-complaint. This appeal, therefore, turns on whether the pleadings, answers to interrogatories and affidavits present a genuine issue of fact requiring determination.

It is firmly established that in considering a motion for summary judgment, the pleadings, depositions and affidavits must be viewed in the most favorable aspect they will bear in support of the party opposing the motion. Ginn v. MacAluso, 62 N.M. 375, 310 P.2d 1034; Sooner Pipe & Supply Corp. v. Doerrie, 69 N.M. 78, 364 P.2d 138; Hubbard v. Mathis, 72 N.M. 270, 383 P.2d 240. And, summary judgment will be granted only when the moving party is entitled to the judgment as a matter of law upon clear and undisputed facts. Rules of Civil Procedure, Rule 56(c) (§ 21--1--1(56)(c), N.M.S.A.1953); Srader v. Pecos Construction Company, 71 N.M. 320, 378 P.2d 364; Hubbard v. Mathis, supra.

So considered, we think that there were genuine issues of fact to be resolved in this case and that summary judgment was improper. Without attempting to detail all of them, we merely point out the following issues of fact which have not been resolved. Keith alleges and I.E.H. denies that the note and mortgage were delivered upon the condition that they would only become effective upon construction of the Keith home in accordance with certain plans and specifications. Keith alleges and I.E.H. denies that I.E.H. agreed to 'furnish materials and build a house' for Keith. I.E.H. denies that a purported construction contract is in fact its agreement or that it was executed in its behalf by an authorized agent.

The arguments on appeal make it apparent to us that the trial court may have been influenced in rendering summary judgment by the contention that I.E.H. built the house without a contractor's license and, therefore, could not enforce a claim for collection of compensation for such collection. In the first place, the issue of whether I.E.H. agreed to construct the Keith house is one of fact to be determined upon a trial of the issues and, since the question will no doubt be again before the trial court when the case is heard on its merits, we shall discuss it. The forfeiture clause (§ 67--16--14, N.M.S.A.1953) of the Contractors' License Law reads, so far as pertinent:

'No contractor * * * shall * * * bring or maintain any action in any court of the state for the collection of compensation for the performance of any act for which a license is required by this act without alleging and proving that such contractor was a duly licensed contractor * * *.'

It is plain that since the...