Kerr v. Schwartz
| Decision Date | 09 October 1970 |
| Docket Number | No. 9047,9047 |
| Citation | 1970 NMSC 126,475 P.2d 457,82 N.M. 63 |
| Parties | Sylvia T. KERR, Plaintiff-Appellant, v. David SCHWARTZ, also known as Dave Schwartz, individually and doing business as Reliable Motors, and Western Surety Company, a corporation, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
This action was commenced in the District Court of Dona Ana County, New Mexico, by plaintiff Kerr for damages under § 64--8--6, N.M.S.A., 1953 Comp., or, in the alternative, for breach of contract on the purchase of a 1969 automobile by plaintiff from defendant Reliable Motors, or for conversion by Reliable Motors of the purchase money or a 1966 Cadillac given to Reliable Motors as consideration for the purchase of the 1969 automobile.
The case was tried to the court without a jury by Honorable J. V. Gallegos, District Judge sitting by designation. Judgment was entered in favor of defendants Schwartz and Western Surety Company. Plaintiff Kerr appeals. The parties will be designated as they appeared in the lower court as 'Kerr,' 'Schwartz' and 'Western.'
Kerr contacted Reliable Motors, in particular Isadore Frank, for the purchase of a 1969 Buick, later changed to a 1969 Oldsmobile. Kerr turned over to Frank a 1966 Cadillac and title thereto. It was agreed between Kerr and Frank that the 1966 Cadillac had a value of $1900, for which Kerr took a receipt. Kerr was given a 1966 Pontiac for her use until the new Oldsmobile became available. The 1966 Cadillac was sold to one Prichard for $1900. Kerr was aware of this sale and agreed to leave the $1900 with Frank to be applied against the purchase of the 1969 Oldsmobile, which was never delivered. Subsequent to July 11, 1968, the date of the agreement to purchase the 1969 Oldsmobile, Frank died.
Upon learning of the death of Frank, Kerr, a couple of days later, went to Las Cruces to determine what had happened to the 1969 Oldsmobile and her credit of $1900, and to file a claim against Frank's estate.
Subsequently, Kerr learned that the application to the State of New Mexico for a license to do business as an automobile dealer, as well as the bond issued by Western, were in the name of Schwartz. Kerr, therefore, alleges that Schwartz was doing business as Reliable Motors and that Frank was the agent of Schwartz. She further alleges fraud and misrepresentation on the part of Reliable Motors. Schwartz denied these allegations and contends that he merely made an application for the license and bond in his name as a favor and accommodation to Frank, who could not furnish a sufficient financial statement to warrant the issuance of a bond, and that Frank was not his agent. Kerr also contends that Schwartz was estopped to deny ownership of Reliable Motors. It is to be noted that Frank and Schwartz were friends, with offices next door to each other in the same building, and that Schwartz was the agent for Western. Schwartz contends that he was not doing business as Reliable Motors; that he had no connection with or interest in the operation of the business; that Frank was the sole owner and operator; that he was not estopped to deny ownership of Reliable Motors; and that he made no representations to Kerr.
The trial court made the following findings of fact, which are paraphrased here, all of which were challenged by Kerr as not having substantial support in the evidence. Kerr further claims error on the part of the trial court for rejecting her requested findings of fact. The trial court found that:
(1) Frank was the owner and operator of Reliable Motors.
(2) Schwartz was not a partner of Frank.
(3) Frank, as owner of Reliable Motors, agreed to sell the 1969 automobile.
(4) Schwartz at no time had any ownership or interest in Reliable Motors; did not participate in negotiations with Kerr; all negotiations were between Kerr and Frank; and Kerr never contacted Schwartz in connection with the transaction.
(5) Schwartz never represented to Kerr that he had an interest in or was connected in any way with Reliable Motors.
(6) During the transaction, Kerr had no knowledge that Western had written a bond for Reliable Motors.
(7) Kerr did not rely upon or change position to her detriment by reason of any statement or fraudulent misrepresentation of either Schwartz or Western.
(8) Kerr did not rely upon or change position by reason of the bond, dealer's license and special license plates issued to Reliable Motors which stood in the name of Schwartz.
(9) Schwartz and Western were not estopped to explain and prove the true ownership of Reliable Motors.
(10) Frank was not an agent of Schwartz in the operation of Reliable Motors, or in the transaction with Kerr.
(11) Frank tendered the $1900 to Kerr, which was declined.
(12) Kerr got title to the Pontiac automobile.
Kerr relies on twenty-three points for a reversal of the trial court's decision; however, all twenty-three points are challenges of the findings of fact made by the trial court and the rejection of requested findings of fact.
The record in this case has been carefully reviewed and reflects that the challenged findings of fact have substantial support in the evidence. We have repeatedly held that where findings of fact and conclusions of law flowing therefrom have substantial support of the evidence, they will not be disturbed on appeal. Yates v. Ferguson, 81 N.M. 613, 471 P.2d 183 (1970).
The fact that there may have been contrary evidence introduced at trial, capable...
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