McDonald v. Journey, 386

• Decision Date: 16 January 1970
• Docket Number: No. 386,386
• Parties: James McDONALD and Theresa McDonald, Plaintiffs-Appellees, v. Robert Lee JOURNEY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 560

464 P.2d 560

81 N.M. 141

James McDONALD and Theresa McDonald, Plaintiffs-Appellees, v. Robert Lee JOURNEY, Defendant-Appellant.

No. 386.

Court of Appeals of New Mexico.

Jan. 16, 1970.

[81 NM 141] H. Gregg Privette, Privette & Privette, Las Cruces, for appellant.

William S. Martin, Jr., Martin & Morris, Silver City, for appellees.

OPINION

HENDLEY, Judge.

Plaintiffs and defendant signed a written instrument, purporting to be an option or agreement, for the purchase and sale of real estate, on August 23, 1967. Plaintiffs simultaneously delivered a $1,000.00 check to defendant, who also acted as escrow agent. The writing granted plaintiffs 'an option to purchase for a period of (90) days or until the outcome of any action' taken by defendant to oust the tenants. The tenants were not evicted until June 15, 1968. On April 28, 1968 plaintiffs told defendant that since they could not get possession, they were not going to exercise their option and demanded the return of the $1,000.00. Defendant cashed the escrow check on May 2, 1968 and refused to return the proceeds. Plaintiffs filed suit for return of the $1,000.00 and the trial court granted plaintiffs' prayer for relief.

We affirm.

Defendant's first point is that:

'THE COURT ERRED IN CONCLUSION OF LAW NO. 1: 'THE PURPORTED AGREEMENT BETWEEN THE PARTIES HERETO IS SO AMBIGUOUS THAT A CONTRACT WAS NOT REACHED BETWEEN THE PARTIES."

Defendant argues that Rubenstein v. Weil, 75 N.M. 562, 408 P.2d 140 (1965) forbids resort to 'grammatical niceties or technicalities of punctuation unless they may be utilized to make plain that which is otherwise obscure.' That argument is misplaced. The trial court did not resort to any technical interpretation. Taking the document as a whole it concluded it to be so ambiguous that a contract was not reached.

The writing speaks of a check for $1,000.00 plus a 'First Lilean (sic) Note' to be given as consideration for the option. These were to be held in escrow to be delivered to the seller 'upon the completion of escro (sic). And transfer of the property described. * * *' There was no first lien note in escrow; only a tax receipt description of land in California.

Apart from the foregoing ambiguity about the consideration to be paid for the alleged option, the writing is not at all clear as to what was to be done with the consideration. In one place the writing provides that if the property was not transferred the agreement was 'null and void' and the escrow agent was to return the check and 'first leen (sic) note' to plaintiff. In another place the writing states that if plaintiff refuses to purchase then the check and first lien note were to be delivered to defendant as liquidated damages for breach of the agreement to purchase. If, however, the property was actually transferred the check and note went to defendant, but less some $400.00. We have no idea what was to happen to the $400.00 in that event.

The record simply does not support defendant's assertion that 'There is no ambiguity whatsoever through the clauses of the contract dealing with the purchase of an option of $1,000.00 by 'Appellees." Whether ambiguity exists is a matter of law. Jenigan v. New Amsterdam Casualty Company, 69 N.M. 336, 367 P.2d 519 (1961). Here there is ambiguity as to whether there was an option to purchase apart from an agreement for the sale of real estate. Even if there is no option, apart from the sale, the purported agreement to sell is ambiguous.

With this ambiguity we look to the intent of the parties. Jernigan v. New Amsterdam Casualty Company, supra. That intent was not ascertained. The trial court rejected defendant's requested findings both as to what was agreed to between the parties and as to plaintiff's...