Richards v. Wright.

• Decision Date: 18 November 1941
• Docket Number: No. 4620.,4620.
• Citation: 45 N.M. 538,119 P.2d 102
• Parties: RICHARDSv.WRIGHT.
• Court: New Mexico Supreme Court

45 N.M. 538

119 P.2d 102

RICHARDS

v.WRIGHT.

No. 4620.

Supreme Court of New Mexico.

Nov. 18, 1941.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Action by Omie Richards against Charles H. Wright for breach of a contract to purchase realty. Judgment for plaintiff, and defendant appeals.

Affirmed.

In vendor's action against purchaser of realty for breach of contract, which stipulated that third person to be selected by purchaser should be umpire to determine whether abstract of title submitted by vendor showed good merchantable title satisfactory to such umpire, opinion of another than umpire selected by purchaser as to whether abstract reflected merchantable title was immaterial.

Donovan N. Hoover, of Santa Fe, for appellant.

Reed Holloman, of Santa Fe, for appellee.

BRICE, Chief Justice.

The appellee recovered damages from appellant for breach of a contract by the latter, for the purchase of certain real estate.

[1] Supreme Court Rule XII provides that “The review in the supreme Court shall be limited to errors assigned.” The appellant has not assigned errors, and under numerous decisions of this court no asserted error, with certain exceptions not material here, will ordinarily be reviewed by this court in the absence of an assignment of error as a basis. State Tax Comm. v. Santa Teresa Land Co., 30 N.M. 298, 233 P. 839; Williams v. Kemp, 33 N.M. 593, 273 P. 12.

[2] The appellant filed numerous exceptions and objections to the trial court's finding of fact and its refusal to make requested findings of fact, but appellant has not only failed to assign error based upon the court's rulings, he has not complied with Sec. 6 of Supreme Court Rule 15, which is as follows:

Assertion of fact must be accompanied by references to the transcript showing a finding or proof of it. Otherwise the court may disregard the fact.

A contention that a verdict, judgment or finding of fact is not supported by substantial evidence will not ordinarily be entertained, unless the party so contending shall have stated in his brief the substance of all evidence bearing upon the proposition, with proper references to the transcript. Such a statement will be taken as complete unless the opposite party shall call attention in like manner to other evidence bearing upon the proposition.”

See Rhodes v. First Nat. Bank, 35 N.M. 167, 290 P. 743.

Also, appellant has made no point or argument, and cited no authority that specifically calls in question the correctness of the trial court's ruling on making any finding of fact or his refusal to make any requested finding. Under this state of the record the findings of the trial court will not be disturbed by us. Robinson v. Mittry Bros., 43 N.M. 357, 94 P.2d 99; Brown v. Mitchell, 45 N.M. 71, 109 P.2d 788; In re White's Estate, 41 N.M. 631, 73 P.2d 316; Wells v. Gulf Refin. Co., 42 N.M. 378, 79 P.2d 921. They are the facts upon which the case rests in this court. Wells v. Gulf Refin. Co., supra. The testimony, which appellant argues under headings hereafter referred to, is out of the case. Mosley v. Magnolia Pet. Co., 45 N.M. 230, 114 P.2d 740.

The substance of the court's findings of fact is as follows:

1. That the plaintiff (appellee) and the defendant (appellant) entered into a written contract whereby appellant agreed to buy and appellee agreed to sell certain real estate situated in the city of Santa Fe, New Mexico, at the agreed price of $5,250. The appellee agreed to employ Charles B. Barker, an attorney at law, to quiet the title to said property by suit. The parties agreed that any and all liens against the property should be paid out of the purchase money under the supervision of said attorney, and the warranty deed was left in his hands, to be delivered to appellant in case the title was satisfactory after it had been quieted and the liens discharged. The appellee agreed to furnish an abstract of title “showing good merchantable title acceptable to the attorney” of appellant. Obligations under the contract were to end in case title could not be made satisfactory to the attorney of appellant.

2. Under finding 2 the court described the property in question.

3. “That, at the inception of the negotiations between said parties relative to the sale of said property to the Defendant, said Defendant employed Charles B. Barker, as his attorney to represent him in the preparation of the contract of sale and to examine and pass upon the title to said property; that said attorney examined the abstract of title for said property and ascertained that it was necessary to have the title thereto quieted; that said Defendant requested that Plaintiff employ said attorney to file suit to quiet title to said property; that, complying with said request, said Plaintiff did employ said attorney for said purpose and said attorney filed suit to quiet title to said property and obtained a judgment, quieting title to the same; that, although said plaintiff at the request of said Defendant, employed said attorney for said purpose, said Defendant retained said attorney as his attorney to pass upon said title; that, after the quieting of said title, said attorney was the attorney for said Defendant for the purpose of passing upon said title and did pass upon said title for said Defendant at the request of said Defendant.”

4. Appellee furnished an abstract of title to the property and Charles B. Barker, attorney for appellant...