Permian Basin Inv. Corp. v. Lloyd
| Citation | 1957 NMSC 48,63 N.M. 1,312 P.2d 533 |
| Decision Date | 10 June 1957 |
| Docket Number | No. 6146,6146 |
| Parties | PERMIAN BASIN INVESTMENT CORPORATION, a Texas corporation, Plaintiff and Defendant in Intervention, Appellee, v. R. L. LLOYD, Defendant and Counter-Claimant, W. C. Gilmore and J. Robert Phillips, Jr., Plaintiffs in Intervention, Appellants. R. L. LLOYD, Plaintiff, v. PERMIAN BASIN INVESTMENT CORPORATION, a Texas corporation, Defendant, Appellee, Green Hornet Uranium Corporation, a Delaware corporation, Defendant, W. C. Gilmore and J. Robert Phillips, Jr., Defendants, Appellants. |
| Court | New Mexico Supreme Court |
George E. Stevens, Albuquerque, for appellants, W. C. Gilmore and G. Robert Phillips, Jr.
Simms, Modrall, Seymour, Sperling & Roehl, Albuquerque, for appellee, Permian Basin Investment Corp.
W. C. Gilmore and J. Robert Phillips, Jr., appeal from adverse judgments in two causes consolidated below in which they sought unsuccessfully to establish their right as third party beneficiaries to recover damages from Permian Basin Investment Corporation because of its refusal to perform its contract with Green Hornet Uranium Corporation to purchase a certain State of New Mexico prospecting permit on lands containing deposits of uranium.
A brief statement of the case will aid in untangling the parties and their interest in this litigation.
Permian Basin Investment Corporation brought suit against R. L. Lloyd for conversion of $15,000 delivered by it to Lloyd to be placed in escrow in an Albuquerque bank by Lloyd for the purpose of purchasing the permit in question. By answer Lloyd admitted receipt of the money, denied he had converted it to his own use and stated he believed there were adverse claims to the sum. He further stated he had filed an interpleader action in federal district court and paid the sum into the registry of the court in that action. We are not told what disposition, if any, was made of the action in federal court; but, Lloyd did file an interpleader action in the court below naming as defendants Permian Basin Investment Corporation, Green Hornet Uranium Corporation and Gilmore and Phillips. Green Hornet Uranium Corporation disclaimed any interest in the fund of $15,000 deposited in the interpleader action and the case was dismissed as to it.
Later, Gilmore and Phillips were allowed to intervene as plaintiffs in the action for conversion between Permian Basin Investment Corporation and Lloyd.
The actions for conversion and interpleader were consolidated for trial to the court. Findings of fact and conclusions of law were made in both cases. In the action for conversion, judgment was entered in favor of the plaintiff, Permian Basin Investment Corporation, against the defendant, Lloyd and the complaint of the intervenors, Gilmore and Phillips was dismissed with prejudice. In the interpleader action, judgment was entered in favor of the defendant, Permian Basin Investment Corporation, against Lloyd, plaintiff, and Gilmore and Phillips, defendants, with the order that the $15,000 deposited in the court registry be paid to Permian Basin Investment Corporation.
Except where referred to specifically by name, the appellants, Gilmore and Phillips, will be referred to as intervenors; Permian Basin Investment Corporation, appellee, will be called the promisor, and Green Hornet Uranium Corporation the promisee. Lloyd did not appeal from the judgment.
In August, 1954, the intervenors acquired New Mexico Placer Prospecting permit No. M-4390 covering a certain section of land valuable for uranium deposits. In September following they sold this permit to Richard D. Bokum, reserving in themselves a seven and one-half percent royalty interest and a fifteen-day first refusal option under which the intervenors had the right, for fifteen days after receipt of notice that a bona fide offer of purchase of the permit had been made to Bokum by a third person, to repurchase the permit on the same terms and conditions as made in the bona fide offer.
By mesne assignments, the promisee became the owner of the permit subject to intervenors' rights. Some days before December 18, 1954, the promisee received a bona fide offer of purchase of the permit for $55,000. Notice of the offer was conveyed to intervenors who decided to exercise their option to repurchase the permit. While making preparations so to do, Lloyd communicated to the intervenors that he and his associates (one of whom was the promisor) desired to purchase the permit for $70,000. On December 11, 1954, the intervenors assigned their first refusal option to Lloyd for a period of one week in order that Lloyd and the promisor could contract with the promisee for the purchase of the interest covered by the prospecting permit. Following this assignment, and prior to the drawing of the agreement between promisor and promisee, it was agreed between the intervenors and the promisee that a sale of the permit would be made directly from it to the promisor, instead of following the circular course of a sale first being made to the intervenors for $55,000 (the sum of the bona fide offer made to promisee), to be followed by a sale from the intervenors to the promisor for $70,000.
Under the terms of the agreement between the intervenors and the promisee, the intervenors were to receive $10,000 of the purchase price to be paid by the promisor, while Lloyd was to receive $5,000 from such source, thus making the actual purchase price to be retained by the promisee and sum of $55,000.
On December 18, 1954, a contract was entered into between the promisee as seller and John J. Bresnahan, Lloyd and the promisor as buyers for the transfer of the permit for the consideration of $70,000, subject to the buyers' approval of the title and verification of the accuracy of a geologic report furnished by the promisee.
The only reference in this contract to the intervenors and in the following provision:
'4. Upon approval of title and verification of the accuracy of the geologic evaluation within the time limit set forth above (30) days, Seller will execute an assignment of the abovedescribed Placer Permit to Buyers or to any party designated by Buyers, warranting title to said Permit subject only to:
(a) Royalty in favor of the State of New Mexico, and
(b) Overriding royalty of seven and one-half per cent of the value per dry ton of uranium ore, or other ore, removed from the described property in favor of J. Robert Phillips, Jr. and W. C. Gilmore as more clearly specified in the Agreement dated September 4, 1954, by and between J. Robert Phillips, Jr. and W. C. Gilmore, as Sellers, and Richard D. Bokum III, as Buyer, the provisions of which it is agreed are fully known to...
To continue reading
Request your trial
-
Jerry Erwin Assocs., Inc. v. Estate of Asher
...v. Tinley all originated in Supreme Court of New Mexico cases. See Permian Basin Inv. Corp. v. Lloyd, 1957-NMSC-048, ¶¶ 20–22, 63 N.M. 1, 312 P.2d 533, 536–37 ; Valdez v. Cillessen & Son, Inc., 1987-NMSC-015, ¶ 34, 105 N.M. 575, 734 P.2d 1258, 1264 ; Jaramillo v. Providence Washington Ins. ......
-
Bellman v. NXP Semiconductors United States, Inc.
...v. Sovereign Eagle, LLC, 2015-NMCA-111, ¶ 34, 362 P.3d 107, 115 (citing Permian Basin Inv. Corp. v. Lloyd, 1957-NMSC-048, ¶ 22, 63 N.M. 1, 312 P.2d 533, 536 ). Under UCC § 2–318, certain non-privity plaintiffs are provided standing to sue as third-party beneficiaries of the warranties that ......
-
Howes v. N.M. Dep't of Health
... ... (quoting Cordova v. World Fin. Corp. of N.M., ... 2009-NMSC-021, ¶ 33, 146 N.M. 256, ... 352, 354, 503 P.2d 332, 334 (quoting Permian Basin Inv ... Corp. v. Lloyd, 1957-NMSC-048, 63 ... ...
-
Hansen v. Ford Motor Co.
...such language, on extrinsic evidence such as the circumstances surrounding the execution of the agreement, Permian Basin Inv. Corp. v. Lloyd, 63 N.M. 1, 7, 312 P.2d 533, 537 (1957). A number of courts have applied these general principles of contract law in cases involving the scope of a ge......