Reagan v. Dougherty.
| Decision Date | 29 September 1936 |
| Docket Number | No. 4144.,4144. |
| Citation | 40 N.M. 439,62 P.2d 810 |
| Parties | REAGAN et al.v.DOUGHERTY. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Curry County; James B. McGhee, Judge.
Action by E. W. Reagan and another, partners doing business as the Reagan Land Company, against W. A. Dougherty. Judgment for the plaintiffs, and the defendant appeals.
Affirmed.
Test to determine whether one is “a real party in interest” is whether he is the owner of the right sought to be enforced, or whether he is in a position to release and discharge the defendant from the liability upon which the action is grounded.
James A. Hall and Carl A. Hatch, both of Clovis, for appellant.
Mayes & Rowley, of Clovis, for appellees.
From a judgment for $1,300 in favor of appellees (plaintiffs below) in a suit against appellant (defendant below) to recover a commission for the sale of real estate, this appeal has been prosecuted.
[1] The appellant saved no record in the district court upon which to base an appeal; requested neither findings of fact nor conclusions of law; and does not contend fundamental error was committed by the trial court.
The district court made findings of fact, which, together with the admitted facts, amply support the judgment. No objection thereto was made, nor any exception taken.
We have often decided that under such a state of the record no relief can be granted here.
The judgment of the district court will be affirmed.
It is so ordered.
On Motion for Rehearing.
The record does not show the witness Shambaugh to be “a real party in interest,” as appellant contends on motion for rehearing. Assuming that this court is not bound by the answer, which admits, and the findings of the court which in effect state, that appellees are the real parties in interest; the evidence of Shambaugh, upon which appellant relies, shows clearly that he is not. This testimony is as follows:
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[2] Assuming the truth of this testimony and giving appellant credit for all reasonable inferences that can be drawn therefrom, it appears that Shambaugh was not connected with the partnership at the time of appellees' employment; that he had no privity of contract with appellant, then or thereafter. He did have an agreement with appellees whereby they were to “split commissions” with him on all sales of land to customers whom he should furnish, but this gave no enforceable right against appellant even though he furnished appellant to appellees as a customer.
[3] Tests to determine if one is “a real party in interest” is whether he is the owner of the right sought to be enforced (Whiteman v. Taber, 205 Ala. 319, 87 So. 353), or whether he is in a position to release and discharge the defendant from the liability upon which the action is grounded. Broderick v. Puget Sound, etc., Co., 86 Wash. 399, 150 P. 616.
[4][5] The relation between a broker and a principal is one of trust and confidence in which the broker's skill and ability are considerations for his selection. The authority conferred upon him is personal, and was not, and could not be, delegated. There is no privity of contract between the principal and a sub-agent employed by a broker unless such employment was at the direction of, or authorized by, the principal. Craig v. Parsons, 22 N.M. 293, 161 P. 1117; Jackson v. Brower, 22 N.M. 615, 167 P. 6; Groscup v....
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Sturgeon v. Clark
...Sec. 21-1-1(17)(a), requiring every suit to be prosecuted in the name of the real party in interest. We stated in Reagan v. Dougherty, 40 N.M. 439, 441, 62 P.2d 810, 811: 'Tests to determine if one is 'a real party in interest' is whether he is the owner of the right sought to be enforced (......
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Turner v. New Brunswick Fire Ins. Co. of New Brunswick
...Lund, 14 N.M. 417, 94 P. 949; Barnett v. Wedgewood, 28 N.M. 312, 211 P. 601. The defendant quotes from our opinion in Reagan v. Dougherty, 40 N.M. 439, 62 P. 2d 810, 811, as follows: “Tests to determine if one is ‘a real party in interest’ is [are] whether he is the owner of the right sough......
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State ex rel. Reynolds v. W. S. Ranch Co.
...the reservoir who have adjudicated rights. They are the owners of the rights which are sought to be enforced. See also, Reagan v. Dougherty, 40 N.M. 439, 62 P.2d 810, and State v. Barker, 51 N.M. 51, 178 P.2d The defense asserted by the appellee could not be granted without prejudice to the......
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Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp.
...of the right being enforced, and in position to discharge the defendant from the liability asserted in the suit, citing Reagan v. Dougherty, 40 N.M. 439, 62 P.2d 810, and concluded in the light of the facts noted above that the insurance company was a necessary and indispensable The facts c......