Provencio v. Price

• Decision Date: 20 January 1953
• Docket Number: No. 5538,5538
• Citation: 1953 NMSC 4,57 N.M. 40,253 P.2d 582
• Parties: PROVENCIO et al. v. PRICE et al.
• Court: New Mexico Supreme Court

Page 582

253 P.2d 582

57 N.M. 40

PROVENCIO et al. v. PRICE et al.

No. 5538.

Supreme Court of New Mexico.

Jan. 20, 1953.

Rehearing Denied March 4, 1953.

Garland & Sanders, Las Cruces, for appellants.

Edwin Mechem, Jess D. Weir and L. J. Maveety, Las Cruces, for appellees.

COMPTON, Justice.

Appellants appeal from a judgment in favor of appellees in an action for specific performance of a contract to sell real estate and to quiet title.

The record discloses that on March 7, 1949, appellant Price and appellees entered into a written contract whereby she agreed to convey the premises in question to appellees for a consideration of $85,000; payable $17,500 cash, the assumption of an existing indebtedness of $20,000, and the remaining $47,500 payable in nineteen equal annual installments of $2,500, commencing April 7, 1950 and bearing 5% interest, interest payable annually. The contract and a warranty deed from the grantor to the grantees were placed with W. C. Whatley, escrow agent for the parties, until the further sum of $30,000 was paid, after which the warranty deed was to be delivered to the grantees and the remaining balance of $17,500 was to be secured by mortgage on the premises conveyed. Thereafter, on November 30, 1949, at the request of appellant Price, the sum of $2,500 was prepaid on the series of annual installments, leaving a balance of $45,000.

The complaint alleges that subsequently on March 1, 1950, the parties entered into an oral agreement whereby they modified the original contract respecting the time and manner of payment of the balance. It is alleged that appellant Price offered to discount the balance by $17,500, if appellees would accelerate the payments in the following manner: $5,000 on or before March 7, 1950, $12,500 on or before April 7, 1950, and $10,000 on or before two years from March 7, 1950, with interest thereon at the rate of 5% per annum, payable annually. It is alleged the offer was immediately accepted by appellees, and that their acceptance was duly communicated to her on March 2, 1950. It is further alleged that appellees, pursuant to the oral contract, timely tendered to appellant Price the cash payments and the promissory note in the sum of $10,000 properly secured by mortgage deed. The complaint further charges that on March 3, 1950, appellant Price, assigned her interest in the written contract to appellant Zuendt on the same terms and conditions as theretofore offered appellees and that the assignment was taken by Zuendt with full knowledge of the previous binding contract between appellant Price and appellees.

By answer, appellants plead the Statute of Frauds, failure of consideration, and deny generally the allegations of the complaint as to the modification of the original contract. The cause was tried to the court, sitting with a jury in an advisory capacity. At the conclusion of the hearing, the issues were found in favor of appellees. Judgment was entered accordingly and this appeal followed.

The pertinent findings are:

'7. That the defendant Margaret Hamilton Price, on March 1st, 1950, through the office of W. C. Whatley, attorney, Las Cruces, New Mexico, submitted an offer to the plaintiff, Luis R. Provencio, to modify the contract of March 7th, 1949, by discounting the balance due thereunder in the amount of $17,000.00, in the following manner: $5,000.00 in cash on or before March 7th, 1950, and $12,500.00, in cash within thirty days from March 7th, 1950, and $10,000.00, on or before two years from March 7th, 1950,--the latter sum to be evidenced by promissory note bearing five per cent interest, and secured by second mortgage lien on the real estate described in the contract of March 7th, 1949.

'8. That J. C. Weir, acting as attorney for Luis R. Provencio, on March 2nd, 1950, tendered to W. C. Whatley, a check of Luis R. Provencio, in the sum of $5,000.00, payable to Margaret Hamilton Price; and that such tender was communicated through W. C. Whatley to the defendant Margaret Hamilton Price, on said day.

'9. That plaintiff Luis R. Provencio, thereafter and within thirty days from March 7th, 1950, tendered and delivered to W. C. Whatley, attorney for the defendant Margaret Hamilton Price, the sum of $12,500.00, represented by a cashier's check, and a $10,000.00 promissory note, payable to Margaret Hamilton Price, due on or before two years from March 7th, 1950, bearing five per cent interest, together with Mortgage Deed lien securing the payment of such note, all duly executed by Luis R. Provencio and his wife, Albina G. Provencio.

'10. That on March 3, 1950, the defendant Margaret Hamilton Price, individually and as Executrix of the Last Will and Testament of Donald A. Price, deceased, executed and delivered to the defendant W. M. Zuendt a written assignment of the contract of March 7, 1949, which assignment was filed on said date in the office of the County Clerk of Dona Ana County, New Mexico, and duly recorded in Book 25, at page 206, of the Miscellaneous Records of said county.

'12. That the defendant W. M. Zuendt, by and through his attorney Bates Belk, at the time he received and accepted the written assignment from Margaret Hamilton Price, of the original contract on Friday, March 3rd, 1950, had notice and knowledge of the negotiations relating to the offer and acceptance between plaintiff Luis R. Provencio and the defendant Margaret Hamilton Price, referred to in Findings Numbered 7 and 8.

'13. That the $5,000.00 personal check tendered by plaintiff Luis R. Provencio by and through his attorney J. D. Weir, on March 2, 1950, to the defendant Margaret Hamilton Price, by and through her attorney W. C. Whatley if presented for payment would have been paid, and that the defendant Price did not refuse to accept the $5,000.00 check for the reason that it was not a cash tendered but for the reason that the tender as made to her did not comply with the agreement which she had offered to enter into with the plaintiff Luis R. Provencio.

'15. That at the time of delivery of the $12,500.00, cashier's check, the $10,000.00 promissory note and the second mortgage lien to W. C. Whatley, attorney for the defendant Margaret Hamilton Price, and escrow agent under the contract of March 7, 1949, demand was made by plaintiffs for the surrender to them of the Warranty Deed then in escrow, which demand was refused.'

It is contended that the...