Lindauer Mercantile Co. v. Boyd

• Decision Date: 28 August 1902
• Citation: 70 P. 568,11 N.M. 464,1902 -NMSC- 021
• Parties: LINDAUER MERCANTILE CO. v. BOYD et al.
• Court: New Mexico Supreme Court

70 P. 568

11 N.M. 464, 1902 -NMSC- 021

LINDAUER MERCANTILE CO. v. BOYD et al.

Supreme Court of New Mexico

August 28, 1902

Syllabus by the Court.

1. In order to make a plea of res judicata effective, there must be at least the concurrence of two things: First, identity of the subject-matter; second, identity of persons and parties.

2. In order to come within the exception, and to prevent the running of the statutes of limitation (section 2921, Comp Laws 1897), the defendant must be a resident of the territory at the time the cause of action accrues, and depart thereafter.

Appeal from district court, Grant county; before Justice Frank W Parker.

Action by the Lindauer Mercantile Company against John J. and J. G D. Boyd. Judgment for plaintiff, and defendants appeal. Judgment for defendants.

This cause was commenced in the district court of Grant county, N M., on the 31st day of May, 1898, and was an action by appellee against appellants upon a promissory note in writing, in words and figures as follows: "$1,884.50. Deming, New Mexico, May 4, 1891. One day after date, singly and separately, we promise to pay to the order of Lindauer Wormser & Co. the sum of one thousand, eight hundred and eighty-four and 50/100 dollars, with interest at the rate of ten per cent. per annum from date until paid, for value received. And in case that legal proceedings may be instituted for the collection of this note, either in whole or in part, we promise to pay the additional sum of ten per cent. on whatever amount may remain due and unpaid, and to pay attorney's fees in case of suit as aforesaid. [Signed] John J. Boyd. J. G. D. Boyd,"--which note was duly indorsed to the Lindauer Mercantile Company. At the time of the execution of the note the makers were at Deming, N.M. Prior to, at the time of, and ever since the execution of the note, the makers of the same were and have been non-residents of New Mexico. To the cause of action there were interposed two defenses: Res judicata and the statute of limitations. In support of defendants' (appellants') plea of res judicata, appellants introduced the following part of the record of the court of letters of the Bravos district, state of Chihuahua, republic of Mexico:

"Petition. To the Citizen Judge of the First Instance: Felipe Seijas, a lawyer of legal age and a resident citizen of the city, of what is known as 'Juarez Ward,' and attorney in fact for Mr. Sigismund Lindauer, and also of Messrs. Lindauer, Wormser & Co., as witnessed by the inclosed power of attorney in due form granted me, very respectfully represents: That on the first day of April, 1890, Mr. Sigismund Lindauer entered into a contract with Mr. John J. Boyd, which contract was legally made out at El Paso, Texas, before a notary public of said city by the name of A. J. Blackburn; and inasmuch as said contract had to be carried out in all its parts in this country the same had to be filed and recorded in the notary's office in this city; and after complying with the requirements of the law to that end your honor designated Notary Miguel Zubia to record said contract, and the same is hereby enclosed, comprising ten legal leaves of written matter. By the terms of this contract, Mr. Sigismund Lindauer aforesaid covenants and agrees to guaranty the payment of Mr. Boyd's debts,--that is, to pay the debts owed by Mr. Boyd to his divers creditors. In order and for the better performance of this covenant, Mr. Lindauer was authorized to dispose of as much as nine thousand (9,000) head of cattle of the property of Mr. Boyd, who also authorized Mr. Lindauer to sell the said cattle in whole or in part, at the highest possible price, until all his debts were paid in full, Mr. Lindauer, meanwhile, being directly responsible to Mr. Boyd's creditors and for debts of all kinds. Furthermore, Mr. Boyd agreed to reimburse and pay back to Mr. Sigismund Lindauer the several amounts of money advanced to Mr. Boyd for maintaining and carrying out his business, and in said contract Mr. Sigismund Lindauer also agreed to pay to the firm of Lindauer, Wormser & Co., of which he is a member, the debt owed by Boyd to the said firm. All these assumed debts amount to ten thousand ($10,000) dollars in United States gold coin, according to Mr. Boyd's own estimate in the aforesaid contract of April 1st, 1890, besides a balance of four thousand and five hundred ($4,500) dollars due and unpaid, which my clients make it shown in a liquidated account is not filed herein, because I have asked for it at Deming, New Mexico, where it originated, and has not reached me yet; and it will be impossible to have it within the three days' time allowed me by law pending the precautionary proceedings taken in regard to Mr. Boyd's property; but I assure your honor that said liquidated account will be filed in court just as soon as it reaches me. My client has complied with all the obligations imposed upon him by the contract aforesaid; he paying, among other debts, that of Mr. S.H. Cavitt, whose legal representatives received in payment of said debt three thousand six hundred and fifty (3,650) head of cattle, the receipt of which will be filed in this case at some future time, not doing so at present because of the same reason already mentioned in regard to the liquidated account. Mr. Boyd on his part has not complied with the terms of the contract, inasmuch as he has not fully paid the amount due the firm of Lindauer, Wormser & Co., nor has he reimbursed or paid Mr. Sigismund Lindauer the expense he had to defray out of his pocket, incidental to the settlement of Mr. Boyd's business according to contract. The failure on the part of Mr. Boyd to comply with the terms of the aforesaid contract compels me to bring him before the court, suing him for the sum of four thousand and five hundred ($4,500) dollars in United States gold coin, or its equivalent in Mexican money, as also for the interest accruing thereon, costs of suit, and damages already suffered and to be suffered during the pendency of this suit, which is based on the following facts, viz.: First. Mr. John J. Boyd entered into a contract with Mr. Sigismund Lindauer on April 1st, 1890, which was acknowledged by A.J. Blackburn, a notary public of El Paso, Texas. Second. According to the aforementioned contract, Mr. Sigismund Lindauer guarantied to pay all the debts of Mr. Boyd. Third. Mr. Boyd, in compliance with said contract, must pay Mr. Sigismund Lindauer, and the firm of Lindauer, Wormser & Co., the amounts, either in money or otherwise, paid by both the aforesaid parties to carry on Mr. Boyd's business, which makes a total debt of ten thousand ($10,000) dollars in United States gold coin, according to Mr. Boyd's own statement in the contract aforesaid. Fourth. Mr. Boyd, so far, has paid part of the ten thousand dollars referred to, but still owes a balance of four thousand five hundred ($4,500.00) dollars in American money, which remains due and unpaid. Fifth. According to article 1392 of the Civil Code, 'a contract compels the parties so making it to comply with the conditions and terms entered into, and expressly specified therein, which in their nature conform with good faith, usage and the law.'

"Now, therefore, having already stated my reasons for this suit, and in conformity with article 471 of the Code of Civil Procedure, I hereby pray that you cite Mr. John J. Boyd to appear in your court in this civil suit, and make him pay the aforesaid amount of money which he owes, and the costs and damages of the suit, as he is compelled to do according to his contract of the 1st of April, 1890, referred to, and also for the interest of said debt. And in conformity with article 75, section 3, of the aforesaid Code of Civil Procedure, I herewith enclose a copy of the document in which I base my suit, asking and praying your honor that inasmuch as Mr. Boyd resides in the Hacienda of Carreta in the municipality of Janor, this district, you may set the time for the appearance of Mr. Boyd to answer this suit according to article 477 of the aforesaid Code. And your petitioner will ever pray.

"C. Juarez, Octo. 9, 1891.

"[Signed] Felipe Seijas, Rubric."

"Felipe Siejas, lawyer of legal age, and attorney in fact of Mr. Sigismund Lindauer, and Lindauer, Wormser & Co., in the suit brought by them against Messrs. John J. Boyd and J. G. D. Boyd, most respectfully represent to your honor that, being within the probatory time, it is convenient to the interests of my client to have the papers herewith inclosed filed and of record in this case, which papers are hereby marked Nos. 1, 2, 3 and 4."

The paper here referred to as Exhibit No. 1 is the identical note sued on in this cause, and the appellants in this case were called upon by the plaintiff in said suit in the republic of Mexico to prove the execution of this note, which was indorsed in blank by the payees, Lindauer, Wormser & Co.

"(16) It appearing to the court that the ownership of the promissory note signed J. J. Boyd and J. G. D. Boyd has not been proven, because the same is simply indorsed in blank and the name of the payee not given, the person claiming ownership of said note (since the signature in said note was recognized by one of the parties signing and no objection to its validity made by the defendant) has the right to collect the same (or enforce its collection), according to articles 497 and 549 of the Commercial Code.

"(17) It is evident, beyond any reasonable doubt, that the defendant in this suit is not liable, because the plaintiffs have not made a case against him.

"Therefore in consideration of the above, the legal propositions referred herein, it is the order, judgment, and decree of the court: First. Judgment is hereby rendered for John J. Boyd in the...