Newbold v. Florance

• Decision Date: 22 April 1952
• Docket Number: No. 5459,5459
• Parties: NEWBOLD v. FLORANCE.
• Court: New Mexico Supreme Court

Page 597

243 P.2d 597

56 N.M. 284

NEWBOLD v. FLORANCE.

No. 5459.

Supreme Court of New Mexico.

April 22, 1952.

Dudley Cornell, Albuquerque, for appellant.

M. A. Threet, Sam Dazzo, Albuquerque, for appellee.

McGHEE, Justice.

This is the second appeal of this case. See 54 N.M. 296, 222 P.2d 1085.

In the former trial below the plaintiff (appellant here) sought to recover commission claimed due for the sale of oil and gas leases which the defendant (appellee here) had sold to the Wood River Oil & Refining Company, Inc. The complaint was in two counts; first, upon an account stated in the sum of $12,500, and second, on quantum meruit for $8,200 which, it was alleged, the parties had agreed upon as the value of the plaintiff's services. The defendant filed a counter claim for $500 which he claimed he had loaned to the plaintiff and which had not been repaid. On the incoming of the answer which denied the plaintiff's claims and asserted the complaint did not state a cause of action upon which relief could be granted, the plaintiff abandoned his claim on quantum meruit and stood upon the first count. The trial court treated the legal exception as a motion for a summary judgment, and, based upon the allegations of the complaint, answers to interrogatories and certain depositions, held the defendant was entitled to summary judgment. The plaintiff thereupon filed an amended complaint by permission of the trial court. This amended complaint alleged there existed a bona fide dispute between the plaintiff and defendant with respect to services rendered by the plaintiff in the sale of oil and gas leases, and that such disputed claim was settled by compromise agreement whereby the defendant agreed to pay the plaintiff $8,200, payable $1,000 in cash and the balance in monthly payments of $300 for a period of three years. The trial court sustained a motion to dismiss which stated such matters were merely repetitious of matter pleaded in the original complaint, that they had been previously disposed of adversely to the plaintiff and that such ruling was res judicata. Summary judgment was entered in favor of the defendant and the plaintiff appealed. We reversed with instructions to vacate the dismissal, deny the motion to strike and hear the case on the amended complaint.

A second trial was had on oral evidence, depositions and interrogatories, and the trial court made the following findings of fact and conclusions of law:

'1. That the plaintiff was never employed by the defendant to make sale of certain oil and gas leases, or interests therein, and which said oil and gas leases, or interests therein, are shown in contract dated May 19, 1947, between the defendant, M. J. Florance, and Wood River Oil and Refining Company, Inc., plaintiff's Exhibit A.

'2. That the said oil and gas leases, or interests therein, mentioned and referred to in Finding of Fact No. 1 herein, were never listed by the defendant with the plaintiff, Charles Newbold, for sale or trade.

'3. That the plaintiff, Charles Newbold, was at no time employed by this defendant, and that they did not enter into an oral or written contract of any kind.

'4. That the defendant did not agree to, nor did he enter into any compromise and settlement with this plaintiff.

'5. That at no time was any money paid to the plaintiff for any settlement of any claim.

'6. That the plaintiff, in his original complaint, elected to stand on the account stated, dismissed voluntarily the count on quantum meruit, and having failed to establish the account stated, he filed a first amended complaint on compromise and settlement.

'7. That no commission is due from the defendant to the plaintiff for and on account of the gas deal between the defendant and Wood River Oil and Refining Company, Inc., for the reason that the plaintiff was not the procuring cause of the said contract.

'As Conclusions of Law the Court finds:

'1. That the Court has jurisdiction of the parties hereto and of the subject matter of this cause of action.

'2. That defendant is entitled to judgment on his cross-claim for $500.00 and costs.

'3. That the plaintiff has elected to pursue his remedy on an account stated, and that he cannot now declare or assert a claim on compromise and settlement.

'4. That the complaint should be dismissed at the cost of the plaintiff.'

The plaintiff has assigned 32 errors which he discusses under four points, as follows:

1. The action of the trial court was inconsistent with the opinion and mandate of this court in the previous appeal.

2. The Supreme Court will review findings based upon evidence introduced largely by deposition.

3. The finding of the trial court is against the clear preponderance of the evidence.

4. The trial court erred in admitting the testimony of J. J. Hudson regarding alleged telephone conversation between defendant and plaintiff.

We will discuss the matters raised by the points in their order.

In his discussion of the first point the plaintiff says:

'At the trial of the cause therefore, counsel was entitled to believe that the trial would be limited to the issues set up by the Amended Complaint, to-wit: whether or not a compromise and settlement had been arrived at. Instead of that, the trial Court was actuated by such misconstruction of the issues or misinterpretation of the law involved, that the Plaintiff was in effect trying the original issues in the case. This is clearly shown by the Findings of Fact and Conclusions of Law adopted by the Court.'

He then quotes findings of fact Nos. 1, 2 and 3, and conclusion of law No. 3, supra.

The findings of which he complains were in response to evidence he himself offered in his case in chief, and which the defendant met, without objection in his case. It ill lies in the plaintiff's mouth to urge the case should be reversed on account of evidence which he offered. Heisch v. J. L. Bell & Co., 11 N.M. 523, 70 P. 572; Gillett v. Chavez, 12 N.M. 353, 78 P. 68; Park v. Milligan, 27 N.M. 96, 196 P. 178; In re Madison (Appeal of Marron), 32 N.M. 252, 255 P. 630. No doubt the trial court and opposing counsel thought when the plaintiff was offering the evidence of which he now complains, and on which findings of fact Nos. 1, 2 and 3 were based, he was complying with the rule of Nixon-Foster Service Co. v. Morrow, 41 N.M. 67, 64 P.2d 92, 94, where it was said:

"Where the question at issue is as to whether or not a settlement was had between the parties, evidence of all the matters comprised in and of the circumstances leading up to and surrounding the transaction constituting the alleged settlement is admissible.' 3 Encyc. of Evi. p. 251.

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'* * * 'Where a compromise is alleged, the determination of all controverted questions of fact is for the jury. Thus on conflicting evidence it is for the jury to determine whether there was an agreement of compromise * * * whether there was a consideration, whether there was such an honest dispute between the parties as could be made the basis of a compromise * * * whether the party relying on the compromise has performed conditions imposed on him, and the damage suffered from the breach, if any." Quoting 12 C.J. at page 367, 15 C.J.S., Compromise and Settlement Sec. 54.

We...