Jones v. Jernigan

• Decision Date: 26 January 1924
• Docket Number: No. 2683.,2683.
• Parties: JONESv.JERNIGAN ET AL.
• Court: New Mexico Supreme Court

29 N.M. 399

223 P. 100

JONES

v.JERNIGAN ET AL.

No. 2683.

Supreme Court of New Mexico.

Jan. 26, 1924.

Syllabus by the Court.

The admission of evidence “subject to the objection” is equivalent to an overruling of the objection.

When an offer to compromise a claim is made, and the admission of the truth of the facts on which the claim is based is hypothetical only, such admission cannot be treated as an assertion representing a party's actual belief, and cannot, therefore, be received in evidence; but, if the admission is unconditional, and made without any regard to the circumstances which accompany it, it should be received in evidence. The rule excluding an offer of compromise is based upon the proposition that such an offer does not ordinarily proceed from and imply a belief that the adversary's claim is well founded, but rather that the further prosecution of the claim, whether well-founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered, and the offer therefore does not signify an admission of the alleged facts on which the claim is based.

A finding of fact, not supported by substantial evidence, cannot be sustained on appeal, and a judgment based on such finding is itself without support.

The measure of damages for the breach of a contract for the exchange of property, by the refusal of one party to make delivery upon performance by the other, is the value of the property which should have been transferred.

Where the parties to a contract of exchange have fixed values on the respective properties for the purpose of computing the cash difference to be paid upon ascertaining the respective numbers or quantities, and without reference to actual value neither party is bound, for other purposes, by the values so fixed; but, in the absence of any evidence of actual value, the price fixed by the parties should be considered prima facie the value of the property, and is some evidence which may serve as a basis for determining the amount of damages.

Where the court assesses the correct amount of damages, but by the application of an erroneous rule, the error is one of pure technicality, and not one of substance, and is not prejudicial.

The time at which the title to property passes, under the terms of a contract of sale or exchange, depends largely on the intention of the parties, and, in the absence of a clear expression of such intention, presents a question of fact rather than one of law. Rules of the common law by which the court should be guided in determining the intention of the parties stated and discussed.

Appeal from District Court, Socorro County; Owen, Judge.

Action by C. A. Jones against G. W. Jernigan and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded for new trial.

The time at which the title to property passes under the terms of contract of sale depends largely on the intention of the parties, and in the absence of a clear expression of such an intention, presents a question of fact rather than one of law.

W. H. Winter and Winter, McBroom & Scott, all of El Paso, Tex., for appellants.

Lee R. York, of Abilene, Tex., for appellee.

BOTTS, J.

In August and September, 1920, the plaintiff, appellee here, was the owner of a herd of cattle in Socorro county, and the defendants, appellants here, were the owners of a flock of goats in Otero county, said goats then being intermingled with goats of other owners, among them being one Boyles, who was running defendants' goats on the shares, he to get half the mohair and half the increase. An oral agreement was entered into between plaintiff and defendants whereby the former was to exchange his cattle for defendants' goats, and, as a basis for adjusting any difference that might exist upon the exchange by reason of the property of one of the contracting parties being of greater value than that of the other, neither party then knowing the exact number of head in their respective properties, certain values per head for different classes of cattle and certain values per head for certain classes of goats were fixed. No part of the contract was embodied in writing, but the court found as a fact that the contract entered into was substantially as follows:

“Defendants agreed to take plaintiff's cattle at the following prices, to wit: All cows with calves, except two, of a lower grade, at $65 per head for cows and calf; said two cows and calves at $50 per head each for said cows and calves; all steers three years old and upwards at $65 per head; two 2 year old steers at $50 per head; all yearlings at $37.50 per head; and all dry cows at $50 per head.

And plaintiff agreed to take defendants' goats at the following prices, to wit: 100 head to be classified as old goats at $2 per head; all other goats at $4 per head, and all kids at $1.50 per head; said goats to be sheared before delivery.

And it was further agreed that the party whose animals upon delivery, at the above prices, amounted to more than the animals of the other party upon delivery at said prices, should be paid by the other party the difference in cash.

And it was further agreed that plaintiff should with all convenient speed gather and drive his cattle to or near Cutter, N. M., and there deliver them to the defendants' employees; and, in case defendants' employees did not meet him at Cutter, plaintiff was to drive his cattle on for a day or two or until met by defendants or their employees, when said cattle were to be delivered and tallied out to the defendants. And it was mutually understood and agreed that upon the delivery of said cattle to defendants plaintiff was at liberty to return to his home and move his family to Prescott, Ariz., and then return to the defendants' ranch and receive said goats.”

While this finding is challenged by the defendants, the evidence seems to be uncontradicted in support of the whole except as to the last paragraph. There was dispute in the evidence as to the place where the plaintiff should deliver the cattle, and it was also disputed that he might return home after delivering the cattle and move his family to Prescott, Ariz., before going to defendants' ranch to receive the goats. The plaintiff and some of his witnesses testified directly in support of this part of the finding, while the defendants and some of their witnesses testified to the contrary, although some of defendants' testimony bore out the finding. This being the case, the finding will not be disturbed in this court.

The plaintiff delivered his cattle to the defendants and then returned to his home in Socorro county and removed his family to Prescott, Ariz., but before he was able to return to defendants' ranch to get the goats a severe storm arose on the goat ranch, resulting in the loss of a large percentage of the goats. The total aggregate exchange price of the cattle, as finally determined by count, under the terms of the contract was $5,355, and it is conceded by all parties that the defendants had a total of 1,506 goats prior to the storm, which could then have been delivered, as also determined by count subsequent to the agreement, of a total aggregate exchange price, under the terms of the contract, of $4,949, leaving, under the terms of the contract, a balance due from defendants to plaintiff of $406, if the contract was or could have been executed before the storm. When the plaintiff went to receive the goats, and found that a large portion thereof had been destroyed, a controversy arose as to who should stand the loss, and, as a consequence, the remnant of goats was not delivered nor received, and the plaintiff brought this action for the breach of the contract. He prevailed in the court below, damages being fixed at the agreed value of the cattle, and the case is now here for review.

The court found that the contract had been breached by the defendants as follows:

“Plaintiff thereupon requested that the remnant of said goats be delivered to him, which the defendants refused except upon the condition that plaintiff would waive payment in money of the balance due on the price of said cattle.”

As a matter of law, the court concluded that the contract had been breached by the defendants, the court's conclusion No. 1 being as follows:

“Defendants breached their contract on or about November 4, 1920, by refusing to deliver the remnant of said goats except upon the condition that plaintiff would waive payment in money of the balance due him.”

Defendants make the point that this finding and conclusion (1) are unsupported by the evidence unless (2) it be by evidence admitted by the court over defendants' valid objection.

The finding now under consideration is the only one made by the court upon which the conclusion of breach of the contract by the defendants is or can be predicated. The finding, therefore, is a material one, and, if unsupported by substantial, competent evidence, the judgment must fail for want of breach by defendants of the contract in suit.

Assuming, for the purpose of our consideration of this point, that the loss of the goats by storm fell upon the defendants, a point which we shall discuss later, and bearing in mind that the defendants were to trade all their goats to plaintiff for all his cattle, with the difference payable in cash by one party or the other, depending on the final count, and neither party having contracted to deliver any specific number of head, it would seem to follow that it was plaintiff's duty to receive defendants' goats, even though a large number of them had perished, and that it was defendants' duty to deliver said goats and pay the balance in cash. It is to be noted that the breach of the contract found by the court is not based upon any refusal of the defendants to pay the cash balance coming to plaintiff, but upon their refusal to deliver the goats at all unless plaintiff would waive the cash payment.

We shall first consider the...