Pattison v. Ford
| Decision Date | 30 April 1971 |
| Docket Number | No. 619,619 |
| Citation | 485 P.2d 361,82 N.M. 605,1971 NMCA 70 |
| Parties | Roger PATTISON, dba Yerba Feed Pens, Plaintiff-Appellant, v. A. T. FORD and Roosevelt County Electric Cooperative, Inc., a Corporation, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiff sought damages for alleged fraud in connection with two boilers and the cost of electrical service. Defendants moved to dismiss the complaint. In granting the motion, the trial court stated: '* * * assuming, for the purpose of the motion, that all allegations pleaded by the plaintiff are true, he is not entitled to the relief prayed for.' Thus, the dismissal was for failure to state a claim upon which relief can be granted. Section 21--1--1(12)(b)(6), N.M.S.A.1953 (Repl.Vol. 4). The issue, then, in plaintiff's appeal, is whether '* * * it appears that plaintiff cannot recover or be entitled to relief under any state of facts provable under the claim. * * *' Jones v. International Union of Operating Engineers, 72 N.M. 322, 383 P.2d 571 (1963). In deciding this issue, we examine the reasons relied on by the trial court in dismissing plaintiff's complaint.
The complaint alleges negotiations for electrical service were instituted by defendant Ford, acting on behalf of the electric cooperative; that Ford figured the cost of operating three boilers, eight hours per day, and figured 7,200 kw hours at a cost of 8 mills per kilowatt (sic), or $57.60 per day. It is alleged that this cost was figured on a blank agreement for electrical service, on a form prepared by the cooperative, and that '* * * a copy of said agreement for electric service, with the figuring as to the cost per kilowatt hour by the defendant Ford, and as represented to plaintiff, * * *' is Exhibit A to the complaint.
Subsequently, plaintiff signed a contract for electrical service, identified as Exhibit C to the complaint. Plaintiff alleges he did not read the contract before signing it because of Ford's 'prior representations;' that the present 'demanded charge' is four times the eight mill rate 'quoted by the defendant Ford in his official capacity;' '* * * (t)hat plaintiff was assured by the defendant Ford, at the time of their first negotiations and thereafter, that all of the electricity charges would be as hereinabove represented * * *;' that '* * * (b)y reason of the specific statements and figures presented by the defendant Ford, * * *' plaintiff purchased the boilers and contracted for electrical service from the cooperative.
The elements of fraud are stated in Prudential Insurance Company of America v. Anaya, 78 N.M. 101, 428 P.2d 640 (1967), and Sauter v. St. Michael's College, 70 N.M. 380, 374 P.2d 134 (1962). No claim is made and the complaint was not dismissed on the basis that the elements of fraud were not pleaded.
The trial court ruled that '* * * plaintiff has failed to allege any legal excuse to read the electric service agreement so signed by him. * * *' This is incorrect. Plaintiff alleged he was induced to enter the contract by Ford's prior fraud. As to fraud in the inducement see McLean v. Paddock, 78 N.M. 234, 430 P.2d 392 (1967). There are circumstances were a failure to read a contract, before signing it, does not bar recovery for fraud. See Davis v. Campbell, 52 N.M. 272, 197 P.2d 430 (1948); Morstad v. Atchison, T. & S.F. Ry. Co., 23 N.M. 663, 170 P. 886 (1918); Vermont Farm Mach. Co. v. Ash, 23 N.M. 647, 170 P. 741 (1918), Since, under facts provable under the claim, plaintiff might recover even though he failed to read the contract, the trial court erred in dismissing on this ground.
The trial court ruled that '* * * plaintiff is charged with knowledge of the schedule of rates contained in the contract, as shown by the exhibits. * * *' This basis for dismissal is erroneous because the contract in the record before us, which is Exhibit C, contains no schedule of rates. A schedule of rates is a part of Exhibit A but there is nothing in the exhibits, nor in the complaint, indicating this schedule applies to the contract signed by plaintiff. The only cost figures in Exhibit C refer to a minimum kilowatt 'demand' for billing purposes and a minimum monthly charge. Both minimums exceed the comparable minimums stated in Exhibit A. Defendants, in their brief,...
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