Johnson v. Nickels

• Decision Date: 02 October 1959
• Docket Number: No. 6559,6559
• Parties: Sam JOHNSON, Plaintiff-Appellee, v. H. C. NICKELS, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 697

344 P.2d 697

66 N.M. 181

Sam JOHNSON, Plaintiff-Appellee, v. H. C. NICKELS, Defendant-Appellant.

No. 6559.

Supreme Court of New Mexico.

Oct. 2, 1959.

Jay Morgan, Portales, for appellant.

Rowley, Davis & Hammond, Clovis, for appellee.

MOISE, Justice.

This is an appeal from a judgment of $2,500 entered in favor of plaintiff-appellee and against defendant-appellant by virtue of a jury verdict in that amount.

The case arose out of certain dealings between the parties whereby plaintiff claimed that shortly after October 10, 1957, he had contracted to buy certain cattle and personal property from appellant, and that appellant breached his contract and refused to deliver, but sold to somebody else on or about November 14, 1957.

The first point relied on for reversal is a claim by appellant that there is no substantial evidence to sustain the verdict of $2,500 damages, and no substantial evidence to show appellee was damaged at all.

In this connection, it should be sufficient to point out that there is evidence that the cows involved were better than average stocker cows. The contract called for 319 head of cows. Mr. Carl Shors, a witness called by appellee, testified that he was engaged in the business of buying and selling cattle, and had been for 25 years; that between October 10, 1957, and November 14, 1957, there was a steady rise in the market on cattle; that average stocker cows increased in value $20 to $25 per head during this period. The record further discloses that on or about November 14, 1957, appellant sold for $45,000 the identical livestock and other personal property allegedly agreed to be sold to appellee, plus approximately $1,500 worth of feed. The price to appellee had been $40,000. There is additional evidence that the market had advanced, but the foregoing is sufficient to describe the situation.

In Conley v. Davidson, 35 N.M. 173, 291 P. 489, 490, the following rule applicable to damages for failure by a vendor to deliver real estate under a binding contract of sale was laid down:

'The general rule is that the purchaser is entitled, as general damages for the refusal or inability of the vendr to convey, to recover the difference between the actual value of the land and the agreed price to be paid therefor. This is generally known as the loss of bargain rule. 27 R.C.L. 631, Sec. 388.'

That the same rule is applicable when a vendor of personal property fails to deliver under his contract was decided in Adams v. Cox, 54 N.M. 256, 221 P.2d 555.

In the case of Pugh v. Tidwell, 52 N.M. 386, 199 P.2d 1001, 1002, the measure of damages wass stated as 'the difference between the agreed price at the time and place of delivery and the market price at time of refusal.'

It should be apparent that if the cows had increased in value by $20 to $25 per head between October 10 and November 14, damages amounting to considerably more than $2,500 would be within the proof, and also that when appellant sold for $5,000 more than his price to appellee, after deducting $1,000 to $1,500, the value of feed not included in his sale to appellee, he himself established a market value on the date of that sale, and a judgment of $3,500 to $4,000 would have been within the proof.

It is thus amply clear that there is substantial evidence to support the verdict and judgment and that appellant's first point is not well taken.

Appellant for his second point claims error in the court's refusal to admit into evidence three printed circulars ostensibly published by the Ranchers & Farmers Livestock Auction Co., Clovis, New Mesico, showing results of sales on September 20, 1957; October 4, 1957; October 29, 1957, and November 1, 1957. These exhibits were offered twice by appellant--once when Carl Shors was being cross examined and after he had read from them, and once during the presentation by appellant of his case. Upon...