J. A. Silversmith, Inc. v. Marchiondo

• Decision Date: 01 June 1965
• Docket Number: No. 7564,7564
• Citation: 75 N.M. 290,1965 NMSC 61,404 P.2d 122
• Parties: J. A. SILVERSMITH, INC., Plaintiff-Appellee, v. Charles R. MARCHIONDO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 122

404 P.2d 122

75 N.M. 290

J. A. SILVERSMITH, INC., Plaintiff-Appellee, v. Charles R. MARCHIONDO, Defendant-Appellant.

No. 7564.

Supreme Court of New Mexico.

June 1, 1965.

Rehearing Denied Aug. 17, 1965.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Mary C. Walters, Albuquerque, for appellant.

Wright & Kastler, Raton, for appellee.

CHAVEZ, Justice.

This is the second time that this case has come before this court. On the first occasion appellee Silversmith, Inc., brought suit against defendants, Leland D. Keeter and Charles R. Marchiondo, to recover on a promissory note executed by defendants jointly, and upon an open account against Keeter. On appeal of that suit we held that the trial court erroneously dismissed the cause on the ground that appellee was barred from maintaining the action because of its failure to register in New Mexico as a foreign corporation. J. H. Silversmith, Inc. v. Keeter, 72 N.M. 246, 382 P.2d 720.

After the case was reinstated on the docket of the district court appellant Marchiondo filed a motion for a hearing prior to entry of judgment or, in the alternative, a motion to permit the introduction of additional testimony. The trial court denied the motion for a new trial or, in the alternative, the motion to reopen the case to permit the introduction of additional evidence, and entered judgment for plaintiff, finding that further findings of fact and conclusions of law were not necessary or proper. From said judgment Marchiondo duly appealed. Leland D. Keeter is not involved in this appeal.

Appellant contends that the trial court must render judgment according to the true intent and meaning of the mandate of this court; and that, where there are multiple defendants and the evidence clearly establishes nonliability of one such defendant, it is error for the trial court to enter judgment against him merely because the mandate directs judgment for plaintiff.

Appellant argues that, before allowing recovery against both defendants on remand, it should have passed on the matters presented by appellant in his defense. Appellant says that his requested findings of fact in the first trial were never passed upon by the trial court or this court, since the only question decided in the first trial and on appeal was the right of appellee to avail itself of the New Mexico courts. Therefore, appellant concludes that the reasonable intendment of our mandate was that judgment should be entered for plaintiff against both defendants only if both defendants had no defense to the action.

Appellant further asserts that the trial court erred in denying the motion for additional evidence in view of the fact that appellant had discovered a witness to support appellant's defense of fraud in the first trial. The trial court, in the first trial, found that the promissory note was signed by appellant without any condition as to the signature of any other person, and was not secured by fraudulent means.

The findings of the trial court were not attacked, thus the facts found by the trial court are the facts upon which the case rests in the appellate court, unless such findings are directly attacked and set aside by this court. Hopkins v. Martinez, 73 N.M. 275, 387 P.2d 852; Bernstein v. Bernstein, 73 N.M. 365, 388 P.2d 187; Brown v. Arapahoe Drilling Company, 70 N.M. 99, 370 P.2d 816; Dowaliby v. Fleming, 69 N.M. 60, 364 P.2d 126. Findings of fact unfavorable to appellee, not attacked by a cross-appeal, must stand. Desmet v. Sublett, 54 N.M. 355, 225 P.2d 141.

Appellant also contends that the trial court erred in refusing to make additional findings on three defenses, either asserted by appellant in the pleadings, or litigated but not decided by the trial court.

The first defense was that raised by appellant's requested finding No. 14, that when Mulligan read the note to Keeter, because Keeter was unable to see properly, Mulligan made no mention of the 7% interest on the unpaid balance of the note. This issue was raised by the amended answer of defendant Keeter. The trial court found that the note was not secured by fraudulent means and this finding is sufficiently broad to encompass the alleged withholding of a material fact from Keeter. It appears, therefore, that the issue of the validity of the 7% interest provision in the note was before the trial court in Keeter's pleading and in Marchiondo's requested finding, and the trial court, by finding that fraud was not present, held adversely to the pleading and requested finding that this clause was invalid. Appellant, by failing to cross-appeal from the trial court's findings against it, did not properly preserve that issue for review on appeal. Townsend v. United States Rubber Company, 74 N.M. 206, 392 P.2d 404.

The second defense that appellant contends was raised in the first trial, but upon which no findings were made, relates to $14,000 in premiums sent to Silversmith by Keeter after the note was signed by appellant, which premiums, appellant argues, should have been applied first to the discharge of the note, and second to any balance due on new business written by Keeter. Appellant's requested finding of fact No. 25 raised the issue of $1,000 of misapplied funds and Keeter, in his amended answer, alleged he was entitled to be credited for certain undetermined sums paid by him to appellee after the note was executed. By the allegation and requested finding set forth above, the issue of $14,000 in misapplied funds was before the trial court. Were we to hold otherwise, appellant would still be precluded from raising this point because matters not raised or brought into issue by the pleadings, and upon which no ruling of the trial court was invoked, are not preserved for review on appeal. Soens v. Riggle, 64 N.M. 121, 325 P.2d 709.

Although the trial court did not specifically make a finding on this issue, it was a material issue in the case for it would have discharged appellant's obligation under the note he co-signed had it been established. Appellant had the burden of proof in the lower court on this defense, because it constituted an affirmative...