Price v. Van Lint

• Decision Date: 31 December 1941
• Docket Number: 4622.
• Citation: 120 P.2d 611,46 N.M. 58,1941 -NMSC- 064
• Parties: PRICE v. VAN LINT.
• Court: New Mexico Supreme Court

120 P.2d 611

46 N.M. 58, 1941 -NMSC- 064

PRICE v. VAN LINT.

No. 4622.

Supreme Court of New Mexico

December 31, 1941

Appeal from District Court, Colfax County; Livingston N. Taylor Judge.

Action by C. S. Price against Victor J. Van Lint for damages for breach of contract, wherein defendant filed a counterclaim. From a judgment for plaintiff, defendant appeals.

Judgment affirmed on condition that plaintiff enter a remittitur in the Supreme Court.

Where defendant breached a contract to loan money to plaintiff in connection with plaintiff's purchase of land upon which plaintiff intended to enter into a new business consisting of the operation of a night club, a mere estimate as to profits which plaintiff would have derived from new business was too remote and speculative to establish damages for loss of profits and did not justify awarding plaintiff damages for loss thereof.

Crampton & Robertson, of Raton, for appellant.

Wilson & Wright, of Raton, for appellee.

SADLER Justice.

In the trial of this action the district court had before it for construction the following agreement in writing, signed by the plaintiff and by the defendant, for claimed breach of which the former sought damages, to-wit:

"Cimarron, N.M. 12-23-1939

"This agreement, entered into by V. J. Van Lint party of the first part and C. S Price, party of the second part,

"First party agrees to deposit the sum of fifteen hundred on or before the first day of February, A. D. 1940 for which security said party of the second part agrees to give mortgage-deed and insurance for the full sum of fifteen hundred dollar ds and agr res to use the above named amount for erecting a building on the land purchased from the Maxwell Land grant Company for which a warranty-deed will be executed and delivered. Party of the second part agrees to keep all taxes and insurance paid up to date on the above described property.

"Party of the second part.

"(Sgd.) C. S. Price

Party of the first part

(Sgd.) V. J. van Lint."

This inartificially drawn contract resulted from the joint efforts of the parties thereto, the plaintiff having contributed its phraseology in seemingly extemporaneous dictation to the defendant who furnished the mechanical skill of reducing it to form on the typewriter.

The parties to the contract and to this action both resided at Cimarron, in Colfax County, New Mexico. The defendant was local agent for Maxwell Land Grant Company at the time of the contract but without authority to execute a deed on its behalf. The plaintiff, desiring to purchase a small tract of land near Cimarron and to construct a building thereon in which to conduct a business, negotiated with the defendant touching the matter. The contract in question resulted. It embodies mutual covenants and reflects the plaintiff's plan for financing both the purchase of the site and the construction of the building.

Anticipatory of the loan mentioned in the writing, the defendant advanced for the plaintiff's account the sum of $134, the agreed sale price of the tract being purchased as a site, repayable from the proceeds of the loan. This sum, along with a deed prepared by the defendant, in due course was dispatched to Amsterdam in the Kingdom of Netherlands. Likewise and in due course, said deed was returned from Amsterdam, apparently the residence of officials of the grantor with authority to act in this connection, and duly delivered to the plaintiff in the early part of March, 1940. Both parties were aware of the necessity of these steps being taken to consummate the purchase and that a considerable time would necessarily elapse before the deed could be delivered to the plaintiff.

In the meantime, the plaintiff seemed anxious to proceed with the construction of the proposed building. The defendant had left Cimarron in late December for a sojourn of more than two months at Corpus Christi, Texas. Apparently, meeting with disappointment in realizing funds from which to make the agreed loan, the defendant sought release from the contract under which he obligated himself to make it. This is shown by the correspondence passing between the parties. Indeed, the tenor of defendant's letters to him was such that the plaintiff very well might have elected to claim an anticipatory breach of the agreement. But he did not do so. On the contrary, he refused to release defendant from the contract and on January 16, 1940, caused his attorney to make telegraphic demand on defendant for performance, declaring: "Your contract has not been canceled and Price (the plaintiff) will hold you liable to any actual damages which may result to him by your failure to comply with agreement. *** If money agreed to be loaned not here by February first you will be held liable for actual damages".

No mutual rescission thus having resulted and the plaintiff not having elected to claim an anticipatory breach of the agreement, the defendant also employed an attorney who, prior to February 1, 1940, the date upon which the defendant promised to deposit the amount of the loan, conferred with the plaintiff's attorney regarding the matter. At this conference, both attorneys treated the loan agreement as still in force and subject to performance, disagreeing only as to what should be deemed proper performance thereof.

Eliminating recital of the steps by which the parties arrived at their respective positions, it appears from a finding based on the letter of January 24, 1940, from defendant's attorney to plaintiff's attorney, that prior to February 1, 1940, the date on or before which the defendant was required to "deposit" the amount of the loan, he made the following offer of performance to the plaintiff, to-wit: "*** that he (defendant) deposit in First National Bank in Raton before February 1, 1940, the full sum of the contemplated loan (that is to say, $1,500.00 less the $134.00 already advanced), this amount to be made available to the plaintiff as soon as the plaintiff should receive his deed to the property in question and as soon as the plaintiff and his wife should give a suitable first mortgage deed as security for the money, the money to be disbursed in any reasonable manner satisfactory to both parties, guaranteeing that it would be used to pay off all possible material and labor claims which might give rise to mechanic's liens so as to insure that the mortgage would be a first lien."

The plaintiff refused this tender of performance and through his attorney by letter of January 24, 1940, advised defendant's attorney as follows: "If Mr. Van Lint will deposit and make available to Mr. Price for the purpose of paying bills on or before the first day of February, 1940, the sum of $1366. plus $72.00 to cover a portion of the actual expense which his announced failure to comply with his agreement has caused Mr. Price, Price and his wife will sign the note for $1500.00 according to the terms and on the form shown you this afternoon, and will also execute and acknowledge a formal written contract to execute and deliver a mortgage upon the tract of land purchased from the Maxwell Land Grant, including of course the new improvements being now constructed thereon, and as security for said note, and will waive any and all other damages which he feels he has obviously suffered in connection with this matter."

After receipt of the letter of January 24, 1940, just quoted, the defendant's attorney on January 29, 1940, addressed the following communication to the plaintiff's attorney: "Since you and Mr. Price have rejected in advance a literal compliance with the contemplated loan arrangement, it would be a useless and futile thing for Mr. van Lint to arrange for depositing the money along the lines which I suggested to you. Accordingly, Mr. van Lint will not arrange for the deposit of the money and will not advance any more money to Mr. Price."

Touching these matters, the trial court made the following additional findings:

"That the defendant has never receded from his position as expressed in the letters of January 24, 1940, and January 29, 1940, written by his attorney, and the plaintiff has never receded from his position as expressed in the letter of January 24, 1940, written by his attorney.

"That the plaintiff has never tendered to the defendant any mortgage deed; that the defendant has never offered to or been willing to advance to the plaintiff the balance of the agreed loan prior to the receiving from the plaintiff of a valid mortgage deed on said premises; that the plaintiff has never repaid to the defendant the sum of $134.00 advanced to him by the defendant or any part thereof or any interest thereon."

For such weight as they properly may have in construing the contract involved, the substance of other findings should be stated at this time. They stand unchallenged. Indeed, none of the facts found by the court as hereinabove recited, are excepted to by either party.

The court found that the loan was to be for a period of two years; that the loan was to bear interest at the rate of 10% per annum; that the mortgage was to cover the land being purchased by the plaintiff from Maxwell Land Grant Company; and that the "deposit" was to be made at First National Bank in Raton.

It further found that prior to his departure for Corpus Christi Texas, the defendant informed Lorenzo Rosso of Cimarron, New Mexico, doing business as Cimarron Mercantile Company, and R. E. Adams of Springer, New Mexico, doing business as R. E. Adams Lumber Company, of his agreement to make a loan of $1,500 to the plaintiff; that on January 9, 1940, the defendant wrote and mailed a letter to said Lorenzo Rosso at Cimarron, New Mexico, stating that the contemplated loan to plaintiff was not going through due to unforeseen...