Moore v. Mazon Estate Inc.

• Decision Date: 07 August 1918
• Docket Number: No. 2155.,2155.
• Citation: 175 P. 714,24 N.M. 666
• Parties: MOOREv.MAZON ESTATE, Inc.
• Court: New Mexico Supreme Court

24 N.M. 666

175 P. 714

MOORE

v.MAZON ESTATE, Inc.

No. 2155.

Supreme Court of New Mexico.

Aug. 7, 1918.Rehearing Denied Nov. 16, 1918.

Syllabus by the Court.

Where, under a contract of employment, a broker undertakes to furnish a purchaser ready, able, and willing to purchase described property on terms fixed by the principal, he is not required to produce the written contract to purchase of the proposed purchaser, in order to perform his undertaking, unless the contract so provides.

Findings of fact, supported by substantial evidence, are conclusive on appeal.

Findings of fact, based upon conflicting evidence, will not be disturbed on appeal.

The liability of an agent to his principal is to be determined by ascertaining the nature and scope of the duty of the former to the latter. Evidence and findings examined, and held, that broker was not guilty of misconduct.

Where evidence is admitted for a stated purpose, the fact that it is inadmissible for a different purpose does not render the action of the court erroneous.

Appeal from District Court, Bernalillo County; Raynolds, Judge.

Action by James R. Moore against the Mazon Estate, Incorporated. Judgment for plaintiff, and defendant appeals. Affirmed.

Where evidence is admitted for a stated purpose, the fact that it is inadmissible for a different purpose does not render the action of the court erroneous.

N. B. Field, of Albuquerque, for appellant.

A. B. Renehan, of Santa Fé, and R. P. Barnes, of Albuquerque (F. E. Wood, of Albuquerque, of counsel), for appellee.

HANNA, C. J.

This is an appeal from the district court for Bernalillo county by the Mazon Estate, Incorporated, from a judgment rendered against it and in favor of James R. Moore for $10,000. The complaint alleged that an oral contract was made between appellant and appellee on December 26, 1915, by the terms of which the appellee was employed to furnish to the appellant a purchaser for described real estate, consisting of ranches, town property in San Rafael, chattels real, live stock, and farming and ranch machinery and equipment, all situate in Valencia county, and upon terms fixed by the appellant; that it was further agreed that, in the event that appellee furnished a purchaser upon said terms on or before January 31, 1917, the appellant would pay him as and for his compensation therefor the sum of $10,000; that in pursuance of said contract and agreement the appellee, on or about January 25, 1917, procured a purchaser for said property upon said terms and conditions, in the person of the Carr-Godding Sheep Company; that said last-mentioned company was then and there ready, able, and willing to purchase said property on said terms and conditions, and tendered to the appellant full compliance with the contract made between the parties hereto, but appellant failed and refused to sell or deliver said property or pay to the appellee the said commission of $10,000.

The answer is too voluminous to state its contents in detail. It first denied allegations contained in the complaint not specifically admitted in the answer, and then alleged three additional and separate defenses. The first was to the general effect that appellee was a close corporation, whose business affairs were conducted on the advise and recommendation of Amado Chaves, because of the unfamiliarity and incompetency of the two other directions of said corporation; that Chaves and appellee occupied towards each other a relation of great confidence, and that by reason of such relation appellee was able to and did induce the appellant to make said contract by falsely and fraudulently representing that he could sell the property to Frank A. Hubbell for a price greater than appellant had been offered, and to the advantage of the appellant, and that the reasonable value of his services therefor would be $10,000, all of which he knew to be false; and that in pursuance of such contract the appellee induced the appellant to execute and place in escrow the necessary deeds, bills of sale, contracts, etc., essential to carry out the transfer of said property. It was further alleged that the appellee and the Carr-Godding Sheep Company entered into a contract by the terms of which appellee agreed and undertook to perform for the Carr-Godding Sheep Company services contrary and antagonistic to the interest of the appellant, for which appellee received the sum of $250, all without the knowledge or consent of the appellant, on account of which appellee was precluded from recovering any sum of money from appellant for services alleged to have been performed in and about the matters set forth in the complaint. The second defense was, in substance and effect, that no consideration existed for the contract of employment of appellee; that on or about January 21, 1917, and prior to the procurement of a purchaser for said property by appellee, the appellant withdrew the offer of sale and so notified the appellee; and that if any services were rendered in the premises by appellee they were of no value or benefit whatever to the appellant, the sole purpose and intention of appellee being to take an unconscionable advantage of the appellant and procure the appellant to pay to appellee an excessive commission for pretended services rendered in behalf of appellant. By the third and last defense the appellant alleged that the agreement between the appellee and the Carr-Godding Sheep Company was not made in good faith, but was merely colorable and for the purpose of making a pretended offer to purchase, to the end that the appellee might force the appellant to pay said commission; that appellee agreed with said sheep company to share with it any commission extorted from the appellant, and consequently the said Carr-Godding Sheep Company pretended to tender $84,575 to the appellant, and demanded performance of the agreements placed in escrow by the appellant.

The appellee replied, denying the allegations of the answer inconsistent with the allegations in the complaint, and specifically alleging, among other things, that the $250 received by him from the sheep company was for and on account of the privilege extended by him to said sheep company, to have a reasonable time in which to inspect and learn the condition of the sheep which appellant agreed to sell.

The cause was tried to the court, without a jury. The issues thus before the trial court were as follows: (1) What were the terms of the agreement made between the parties hereto? (2) Was the agreement induced by the fraud of the appellee? (3) Did the appellee perform his undertaking; and (4) did appellee forfeit his right to a commission by virtue of misconduct on his part in the premises?

The findings of fact, as such, were favorable to the appellee. The court found, in substance and effect, the following: That the oral contract mentioned in the complaint was executed as alleged therein; that appellee notified the appellant, on or about January 13, 1917, that he was negotiating with the Carr-Godding Sheep Company for the sale of said property; that a list of said property, including the prices fixed therefor, was delivered by Chaves to appellee; that the number of live stock which appellant could deliver on or before January 31, 1917, was not then known, and consequently the total price set on the property in said list amounted to $110,000; that when negotiations were opened with the sheep company by appellee the latter granted the former the right to make an inspection of said property and determine whether it would purchase the same, said right of inspection and determination being limited to January 22, 1917; that on the last-mentioned date the report of the agent of the sheep company as to the condition of said property, etc., had not reached the sheep company, and, desiring additional time, it paid the appellee the sum of $250 for time to inspect said property, etc., until January 27, 1918; that, in the event the said sheep company made purchase of said property, the $250 paid by it to the appellee should, by agreement, be applied to the consideration to be paid for the sale and delivery of said property; that on January 22, 1917, the said sheep company submitted to the appellee, for transmission to the appellant, a counter proposition, having in view the decreasing of the price of certain lands and the elimination of others from the said sale, which proposition appellee submitted to appellant, who rejected the same; that the counter proposition was evidenced by a pencil memorandum made by the appellee, and that appellee made no effort to induce the appellant to accept the same, but acted in good faith towards the appellant; that appellee procured the Carr-Godding Sheep Company as a purchaser of said property, on the terms and conditions fixed, on January 26, 1917, and the appellee thereupon notified the appellant of such fact; that appellant thereupon, on said day, advised the appellee that it would accept said Carr-Godding Sheep Company as a purchaser, but subsequently notified the appellee that it would not, saying that it had changed its mind; that “on and since” January 26, 1917, appellant was notified that the said sheep company was ready to purchase on said terms, and that on January 28, 1917, the appellant emphatically refused to sell; that Moore agreed to compensate Wilcox, in whose name the escrow papers were prepared, for his services in the premises; that Wilcox was used in order to facilitate the appellee in making the sale, and that appellant has refused to pay the said commission to appellee. As a conclusion of law the trial court found that appellee was entitled to the relief for which he prayed.

We have set forth the findings of the trial court at some length because of the attacks made upon them by the appellant, and for the additional reason that certain propositions asserted by appellant's counsel are premised upon facts contradictory of those findings....