PITEK v. McGUIRE

• Decision Date: 09 September 1947
• Docket Number: No. 4991,4991
• Citation: 1 A.L.R.2d 830,51 N.M. 364,184 P.2d 647
• Parties: PITEK v. McGUIRE et al.
• Court: New Mexico Supreme Court

51 N.M. 364

184 P.2d 647

1 A.L.R.2d 830

PITEK

v.McGUIRE et al.

No. 4991.

Supreme Court of New Mexico.

Sept. 9, 1947.

[184 P.2d 648, 51 N.M. 366]

Don G. McCormick, of Carlsbad, and Allen M. Tonkin, of Albuquerque, for appellant.

Iden & Johnson, of Albuquerque, for appellee Katherine McGuire.

On Rehearing.

PER CURIAM.

Upon rehearing the original opinion has been withdrawn and the following substituted:

BRICE, Chief Justice.

The appellant is of the opinion that the order herein granting a rehearing being general that all points and questions which were, or might have been, presented in the original hearing may be presented and considered on this rehearing. Whether this is correct in the absence of a contrary rule, we need not decide; but it cannot apply in this jurisdiction because of the following rule:

'The motion for rehearing shall be directed to the opinion of the court, and shall distinctly specify wherein the same is erroneous; but shall not renew contentions previously argued and submitted and expressly disposed of except to invoke an earlier decision, a statute or a rule of court deemed controlling and previously overlooked. The motion may also direct the court's attention to fundamental or jurisdictional error not previously presented, and may renew any contention deemed controlling and not expressly passed upon.' Sec. 1, Supreme Court Rule 18.

Necessarily the review on rehearing is limited to questions authorized by the rule, otherwise the rule would be without effect.

[184 P.2d 649, 51 N.M. 367]

But the appellant has limited his attack on the opinion of the Court by his motion to two propositions, to wit:

'The Court has failed in its opinion to consider the effect of two letters written by defendant's attorney to plaintiff after the oral contract was made, which letters, together with other writings signed by defendant, constitute a complete memorandum.

'The Court, in its opinion, has overlooked a controlling rule of law in holding that the memorandum must be wholly executed subsequent to the oral agreement.'

The scope of a rehearing ordinarily is limited by (1) the assignments of error, (2) the points made in the original hearing, (3) Sec. 1 of Supreme Court Rule 18, supra, (4) and the asserted errors contained in the motion. Arizona Prince Copper Co. v. Copper Queen Copper Co., 2 Ariz. 169, 11 P. 396; State v. McKnight, 21 N.M. 14, 153 P. 76; Goodeve v. Thompson, 68 Or. 411, 136 P. 670, 137 P. 744; Honea v. St. Louis, etc., R. Co., 245 Mo. 621, 151 S.W. 119; 4 C.J.S., Appeal and Error, § 1448; 3 A.J., Appeal and Error, Sec. 806.

Because of the withdrawal of the original opinion all questions presented at the original hearing will be reconsidered.

This action was brought to enforce the specific performance of a contract for the sale and purchase of real estate; and the questions are, (1) was the contract within the statute of frauds? and (2), if not, was there such inadequacy of consideration as that a court of equity should not enforce specific performance?

The facts are substantially as follows:

The appellee Katherine McGuire (hereafter called defendant) is the owner of Lots 3 to 8 inclusive, of Block 4, Mankato Place Addition to the city of Albuquerque, New Mexico, having purchased them for $1,100 in 1926. These lots front 150 feet on East Central Avenue. The record title to this property was held in the name of the defendant Kahler, and ex-service man, in order to receive the benefit of the soldier's exemption from taxation and thus defraud the state of its taxes. Defendant held an unrecorded warranty deed from Kahler. On the 14th day of August, 1945, the plaintiff wrote defendant as follows:

'Friends of ours, Mr. and Mrs. James Cusack, said you are the owner of a lot on East Central Ave., but do not know the exact location.

'Is the lot for sale? and if so, would you give us the exact location and the description?'

To this letter the defendant answered as follows: 'In response to your letter, I do own two parcels of property on Central Ave., one on Mankato Place 3 x 8, or 150 ft., and the second one on Unity St., 42. I wish you would put a price on both of those. Also block on Mesa Park 9.'

Answering, plaintiff wrote defendant McGuire, offering her $3,500 'for her property fronting 150' on East Central Avenue, Albuquerque, N. M.' Defendant replied to this letter, stating she had more than $3,500 in these lots. Shortly thereafter plaintiff again wrote, asking defendant to put a price on the lots but defendant did not reply to this letter. Under date of October 18, 1945, plaintiff wrote to defendant as follows: 'Have been waiting for a reply to my last letter in regards to the lots you own on Central Ave. Have you put a price on them? and do you still intend to sell? I would like to know-perhaps we can get together. Won't you let us know one way or another?'

Under date of November 2, 1945, defendant replied as follows: 'Their was a block long frontage in the 4400 block of E. Central was purchased by Latif Hyder. The 250 ft. was about $20,000. So my half block near to town ought to be worth $12,000, Twelve Thousand Dollars.'

This ended the written negotiations of the parties. On November 9, 1945, the plaintiff conferred with the defendant at her home in Chicago regarding the purchase of this property. During the conversation the defendant's son Maurice McGuire, an attorney aged 42, was present. In this conversation the plaintiff offered defendant $10,000 for the property and she countered with an offer to accept $12,000. At the suggestion of defendant's son, the conferees 'split the difference' and agreed upon aprice of $11,000. Plaintiff then wrote out and handed to defendant a check, as follows:

'New Mexico State Bank

Albuquerque, N. M. Nov. 9, 1945 No. ___

Pay to the Order of Katherine McGuire $500.00

Five Hundred and no/100 Dollars

To be applied on purchase of property on E. Central Ave.

Albuquerque, N. M. Bernalillo Co.

Leaving balance of 10,500 dollars

Albert Pitek'

The plaintiff asked to see a deed or tax receipt or some other evidence of title. He was informed that no taxes were being paid on the property. He was shown an unrecorded deed from defendant Kahler to defendant McGuire, in which the property was conveyed to the latter, but plaintiff was not permitted to take it away. The following morning defendant McGuire's son gave plaintiff a prior recorded deed in which the property in suit was described; and was also given a note to be delivered to W. A. Keleher, defendant's attorney, the contents of which are not disclosed by the record.

The defendant received the above described check for $500 as part payment on the property she sold to plaintiff, and advised him that her attorney W. A. Keleher of Albuquerque, would prepare all necessary papers to close the deal. The plaintiff requested that the check be held a few days until he verified the location of the lots. The plaintiff verified the location of the lots and thereafter on the 26th of November defendant endorsed the $500 check and deposited it in a Chicago bank. It was duly cleared and charged to plaintiff's account.

Thereafter and prior to December 8, 1945, defendant signed and acknowledged a warranty deed from herself as grantor to plaintiff and his wife as grantees in joint tenancy, correctly describing the property involved herein, which deed she mailed, together with an unrecorded deed from defendant Kahler to herself, to her attorney, W. A. Keleher. On December 8, 1945, W. A. Keleher wrote plaintiff as follows: 'Please be advised that I have now received the abstract of title to the McGuire property which you are purchasing. If you will call at the office, I will be glad to hand you same for examination. I am holding for recordation Warranty Deed from Kahler to Katherine McGuire and deed from Katherine McGuire to you and your wife as joint tenants. These will be taken care of at the time of closing the transaction with you.'

In response to this letter, plaintiff called at the office of W. A. Keleher and was informed by him that something had happened and that plaintiff would hear from him, Keleher, in a few days. On December 12, 1945, W. A. Keleher wrote plaintiff, as follows:

'Dear Mr. Pitek:

A letter today from Mr. Maurice McGuire of Chicago advises that Otto Kahler refuses to permit the sale to you to go through. He has asked that I return to you the enclosed check for $500 drawn on the Merchants National Bank in Chicago, signed by Katherine McGuire.'

No direct representations as to the value of the property involved were made by plaintiff to defendant. Defendant was pleased and satisfied with the transaction until she learned about December 11, 1945, that the property was worth a great deal more than $11,000.

Plaintiff is 45 years of age, with a sixth grade education. Defendant is the owner of five improved parcels of real estate in Chicago, rented to business concerns, the dwelling where she resides, in addition to the property owned by her in and near Albuquerque, New Mexico.

She is 76 years of age and is possessed of all her mental faculties. She had not been in Albuquerque for four years preceding this transaction. One sister and her son-in-law, defendant Kahler, resided in Albuquerque,with both of whom she corresponded.

In Albuquerque, New Mexico, real estate values generally have advanced greatly during this period. On East Central Avenue, in the area of the property involved, there had been great activity and building, the most spectacular advances in the price of real estate occurring during the summer and fall of 1945. The actual market value of the McGuire property on November 9, 1945, was $25,000, and plaintiff, on the said date, well knew that the McGuire property was worth a great deal more than $11,000.

Plaintiff is able, ready, and willing to pay the balance of $10,500 on the contract and to close the transaction.

Defendant owned no property in Mankato Place Addition to the city of Albuquerque, except that in...