Luna v. Flores, 6353
| Decision Date | 14 July 1958 |
| Docket Number | No. 6353,6353 |
| Citation | 1958 NMSC 86,328 P.2d 82,64 N.M. 312 |
| Parties | Melcor LUNA, Plaintiff-Appellee, v. Jacinto FLORES and Jacinto R. Flores, Defendants-Appellants. |
| Court | New Mexico Supreme Court |
Threet & Ussery, Albuquerque, for appellants.
Chavez & Cowper, Belen, for appellee.
This is an appeal of an action brought by the plaintiff-vendor Melcor Luna, appellee here, against the defendant-purchasers Jacinto Flores and his son Jacinto R. Flores, appellants here, and the Century Life Insurance Company. The litigation, tried in the District Court of Torrance County before the Hon. Garnett R. Burks without a jury, arose from a real estate transaction wherein the vendor agreed to sell his ranch to the purchasers.
Following extended preliminary oral negotiations in the fall of 1955, the contract was reduced to writing on February 23, 1956, the consideration being expressed as $28,000 and, in order to facilitate a loan of part of this amount to the purchasers by the Century Life Insurance Company, the vendor executed a warranty deed along with an assignment of certain grazing rights on adjacent state lands, which deed was given to the insurance company acting as escrow agent. Admittedly a loan of $14,000 was procured by the purchasers, $7,069.86 going to satisfy a prior existing mortgage on the tract, and $6,796.17, the remainder after deduction of some expenses, going to the vendor in the form of two checks in the amounts of $2,000 and $4,796.17. A controversy exists over the balance of the purchase price, namely $14,000. It will be noted that the initial payment was $14,000, leaving a balance of $14,000, and this similarity of amounts led to the misunderstanding which followed.
The vendor contends that balance of $14,000 was never paid, while the purchasers claim that they paid the same in cash and they offer the vendor's receipt to prove payment. The vendor replies that he gave the receipt thinking it to be an acknowledgement for the $14,000 in checks and credits admittedly received.
We pause here to give an account of the unusual banking facility uses by the purchasers and a friend of theirs, wherein was cached away the $14,000 they contend was given to the vendor as the balance of the purchase price, which the vendor denies was ever paid to him. This facility consisted of an abandoned dry well, some 40' deep, located about 1/2-mile from the purchasers' home near Corona, New Mexico. The two purchasers and their friend all testified to their joint use of the facility over a period of time, and they likewise testified with regard to the descent for the purpose of the withdrawal of the $14,000 which, incidentally, badly depleted the account.
The above facts form the background upon which is based the vendor's first claim for relief asking a judgment for the $14,000 unpaid balance of the purchase price and foreclosure of a vendor's lien in the amount of that judgment. Admitting that a total of $14,000 was paid to him or for his benefit, the vendor claimed the purchasers had not paid the balance of $14,000 on the contract and prayed judgment in that sum, asking the judgment be declared a paramount vendor's lien on the premises, that the lien be foreclosed and the premises sold, with a judgment upon any deficiency. The vendor also alleged that the purchasers fraudulently procured a receipt from him which purported to show a payment of $14,000 in cash, and that the insurance company negligently surrendered the deeds on the basis of this receipt.
The purchasers answered claiming full payment of the purchase price. They alleged a payment in cash of the $14,000 balance on April 16, 1956, as evidenced by the vendor's receipt dated April 18, 1956, and denied fraudulent procurement of the cash receipt. The purchasers also pleaded two counterclaims upon which judgment was rendered for them, but those issues will be disregarded here inasmuch as there was no cross appeal on them.
The Century Life Insurance Company also answered but the action was dismissed as to them before trial.
On this first claim for relief, the lower court made findings which we briefly summarize here. The court found that the vendor was at all times ready, willing, and able to perform upon payment of the balance of the purchase price; that the vendor signed a receipt for $14,000 in cash which, since he did not speak, read or write the English language sufficiently to understand the wording, he signed in the belief that it was a receipt for $14,000 in checks and credits; that the purchasers understood the English language intelligently and were familiar with modern business practice and procedure; and that the purchasers have never paid the $14,000 balance due the vendor under the terms of the contract. Upon these findings, judgment was entered for the vendor in the sum of $14,000.
On appeal, the purchasers attack the judgment on this first claim for relief on the basis that the trial court erred in failing to make a finding of fact on a material issue in the case--fraud in the procurement of the receipt--and on the basis that the judgment is not supported by substantial evidence.
In support of their position that the trial court erred in failing to find on the issue of fraud, purchasers cite the case of Laumbach v. Laumbach, 58 N.M. 248, 270 P.2d 385. Purchasers also cite Smith v. South, 59 N.M. 312, 283 P.2d 1073, and State Nat. Bank of El Paso, Tex. v. Cantrell, 46 N.M. 268, 127 P.2d 246, 249, where this court said:
'It is not proper for the trial court to refuse a proposed specific finding of an ultimate fact within the issues supported by substantial evidence, believed by the Court and necessary to determine the issues in the case.' (Emphasis ours.)
We think it well to note that in the Cantrell case, supra, the defendant requested no specific findings of fact or conclusions of law and the court made none of its own except a general finding of the issues in favor of the defendant.
In Smith v. South, supra, this court remanded the cause because the trial court failed to make specific findings and conclusions on a material issue. Likewise in the Laumbach case this court, applying Rule 52(B)(a)(2), Rules of Civil Procedure, held that the trial court's failure to make a finding on a material issue when requested to do so was error.
In the instant case, the allegation of fact in the complaint with regard to fraud in...
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