L. & B. Equipment Co. v. McDonald, 5804

Citation275 P.2d 639,1954 NMSC 100,58 N.M. 709
Decision Date18 October 1954
Docket NumberNo. 5804,5804
PartiesL. & B. EQUIPMENT COMPANY, a co-partnership, Plaintiff-Appellee, v. L. D. McDONALD, Defendant-Appellant.
CourtSupreme Court of New Mexico

I. M. Smalley, Deming, for appellant.

Sherman & Hughes, Deming, for appellee.

SEYMOUR, Justice.

Appellee sued appellant for $2500 damages allegedly arising from appellant's refusal to accept delivery of a truck chassis ordered by appellant from appellee for use on appellant's school bus. Prior to trial and in mitigation of damages, appellee sold the chassis to a third party for $1500. Trial before the court without a jury resulted in judgment for appellee of $750, from which judgment this appeal is taken.

Briefly the facts are these: Appellee, a co-partnership dealing in heavy equipment and motor vehicles, negotiated with appellant who, as the owner and operator of six school buses under contract with the school authorities, wanted to purchase a new school bus chassis. At the conclusion of negotiations, appellant executed a written order for the purchase from appellee of an International truck for a price of $2250, such order or invoice carrying certain specifications as to length of wheel base, size of tires, and other details. Appellee procured and offered delivery of a chassis which was refused by appellant on several grounds, including an assertion that the engine was not a 'sleeve' engine as distinguished from another type of engine used in International trucks and that the chassis was used instead of new. The order was silent with regard to the type of engine.

Substantially, appellant's first point is that there was no substantial evidence to support the trial court's findings of fact 5 and 6 reading as follows:

'5. That the truck chassis tendered by plaintiff was new and the original manufacturer's certificate of title had never been issued to any purchaser.

'6. That the truck chassis was of the specifications as ordered or later agreed upon by defendant, with standard motor as equipped by the manufacturer for such size chassis.'

Appellant's first contention as to the type of engine must fail. The principal question of fact in this lawsuit was whether or not a 'sleeve' engine was a part of the specifications. There was positive testimony on both sides of this question by the parties concerned. The trial court had the right to and did evaluate the credibility of these witnesses and chose to believe the testimony of appellee. This Court is bound by the above quoted finding numbered 6 in this regard.

Appellant's second point asserts that appellee was not a licensed automotive dealer with bond pursuant to the requirements of Ch. 138, N.M. Session Laws of 1953. Assuming this to be true and that the transaction was consummated subsequent to the effective date of that law, there is no principle of law suggested in appellant's brief which would support the theory that a violation of this statute would prevent appellee from enforcing his contract of sale. Furthermore, there is no provision in the statute suggesting such a consequence. We assume that appellant had in mind a defense based upon the illegality of a contract made by such an unlicensed dealer.

Error in this connection is asserted in the trial court's refusal of appellant's requested finding of fact numbered 2: 'That the plaintiffs, * * * are not licensed automotive dealers, so as to meet the requirements of Chapter 138 of the Laws of 1953, * * * and had posted no bond with the State of New Mexico.' There is no offered conclusion of law based upon such finding. The finding itself contains no assertion that the statute was in effect at the time of the transaction in question.

Under these circumstances we decline to pass upon the merits of this contention. Section 19-101(8)(c), N.M.S.A. 1941, Rules of Civil Procedure, rule 8(c), requires affirmative pleading of the defense of illegality. It was not so plead by appellant, nor any amendment sought or made. Therefore, even...

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8 cases
  • McLean v. Paddock
    • United States
    • Supreme Court of New Mexico
    • July 17, 1967
    ...Oil Co., 71 N.M. 411, 379 P.2d 61; Southwest Motel Brokers, Inc. v. Alamo Hotels, Inc., 72 N.M. 227, 382 P.2d 707; L. & B. Equip. Co. v. McDonald,58 N.M. 709, 275 P.2d 639; Keirsey v. Hirsch, 58 N.M. 18, 265 P.2d 346, 43 A.L.R.2d 929; Edward H. Snow Development Co. v. Oxsheer, 62 N.M. 113, ......
  • Campbell v. Smith
    • United States
    • Supreme Court of New Mexico
    • May 9, 1961
    ...Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162. See also Salter v. Kindom Uranium Corp., 67 N.M. 34, 351 P.2d 375. L. & B. Equipment Co. v. McDonald, 58 N.M. 709, 275 P.2d 639 is distinguishable. The statute applicable there did not prevent enforcement for violation of the license However, when......
  • State v. Favela
    • United States
    • Court of Appeals of New Mexico
    • August 9, 1968
    ...Idaho 58, 108 P.2d 841 (1941); Fuerst v. St. Louis Public Service Co., 368 S.W.2d 550 (Mo.App.1963). See also L. & B. Equipment Co. v. McDonald, 58 N.M. 709, 275 P.2d 639 (1954); McKenzie v. King, 14 N.M. 375, 93 P. 703 Defendant's third point is that: 'The evidence was insufficient to esta......
  • Miller v. Golden W. Motel
    • United States
    • Supreme Court of New Mexico
    • May 15, 1967
    ...there was no other evidence of a substantial nature on which the court could have based its decision. See L. and B. Equipment Company v. McDonald, 58 N.M. 709, 275 P.2d 639; Moore v. Moore, supra. Because the trial court reached the announced result without the aid of exhibit 10 the rule fo......
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