Romero v. Romero

• Decision Date: 16 May 1924
• Docket Number: No. 2844.,2844.
• Citation: 29 N.M. 667,226 P. 652
• Parties: ROMEROv.ROMERO ET AL.
• Court: New Mexico Supreme Court

29 N.M. 667

226 P. 652

ROMERO

v.ROMERO ET AL.

No. 2844.

Supreme Court of New Mexico.

May 16, 1924.Rehearing Denied June 6, 1924.

Syllabus by the Court.

Plaintiff leased sheep to R., who gave bond to perform the contract. R., on account of financial reverses, became unable to perform, and, over the protest of plaintiff, compelled her to take back the sheep in order to mitigate her loss. The surety on R.'s bond was not thereby discharged from liability for damages suffered by plaintiff by reason of the breach of the contract.

Plaintiff kept a book of account in which she entered items of expense making up her loss by reason of breach of the contract and a witness testified generally that expense was incurred by plaintiff. It is held that the testimony of the witness and the book of account are sufficient corroboration of plaintiff's testimony to authorize recovery against the estate of a deceased person.

Under a bill of particulars showing an item of net loss, it is competent to show how the same arose by showing expenditures and income.

Proof of a custom is not allowable to vary the terms of definite contract.

It is proper to direct a verdict where the evidence is such that no other verdict could be allowed to stand.

Appeal from District Court, Valencia County; Hickey, Judge.

Action by Isabel Baca de Romero, administratrix of the estate of Andres A. Romero against Andres A. Romero, Jr., and another. From a judgment for plaintiff, defendants appeal. Affirmed and remanded, with directions.

Where, in an action for breach of contract, the plaintiff kept a book of account in which she entered items of expense making up her loss and a witness testified generally that expense was incurred by plaintiff, the testimony of the witness and the book of account held sufficient corroboration of plaintiff's testimony to authorize recovery against the estate of a deceased person under Code 1915, § 2175.

George S. Klock and M. J. McGuinness both of Albuquerque, for appellants.

Neill B. Field and Milton J. Helmick, both of Albuquerque, for appellee.

PARKER, C. J.

The appellee, hereinafter called plaintiff, entered into a written contract of lease of a certain number of sheep with Andres A. Romero, Jr., and the sheep were delivered to him and he entered upon the performance of the contract. The contract provided for the delivery of a bond of indemnity to plaintiff securing her against loss by reason of the failure to perform the contract. The bond was given, and one Boleslo Romero became surety on the same. The lessee became financially embarrassed and refused to further perform the contract. Plaintiff applied to the surety to take over and perform the contract, which he refused to do. Plaintiff then, under protest and against her will, took over the sheep and cared for them for about eight months and until she sold them. She brought this action on the bond for damages on account of the breach of the contract against the lessee and Boleslo Romero, as surety on the bond. After the cause was at issue Boleslo Romero died and the appellant, hereinafter called defendant, was substituted as his administrator. The case was tried to a jury and, upon motion of plaintiff at the close of the case, the court directed a verdict for the plaintiff, upon which judgment was rendered. Defendant has appealed.

[1] 1. Counsel for defendant argue that the surety was discharged by reason of the fact that plaintiff took back the sheep, and relies upon a provision of the contract which reads as follows:

“If the party of the second part shall neglect or refuse to keep or perform any of the provisions and covenants of this contract on his part to be performed after reasonable notice and demand thereof, then, in that event, the party of the first part may at her option retake possession of all the said sheep and increase thereof, and declare this contract terminated, and thereupon this contract shall terminate and mature in the same manner and with the same effect as if it had been terminated by the expiration of its time.”

A reading of this provision clearly shows that it has no application to the contention made. The provision is intended to confer a right on the plaintiff, in case of refusal by the lessee to care for the property, to take possession of the same, and to cut off all further rights therein on the part of the lessee. The surety, even assuming that plaintiff had exercised her right under this provision, which the evidence shows she did not, would not be discharged from liability from damages already suffered by the plaintiff, in the absence of some agreement to that effect between the parties, and there was no such agreement. In this connection it is argued that the lessee had not actually abandoned the sheep, and therefore the necessity to take them over had not arisen. But the evidence shows that he had declared he would abandon them and that he was unable, on account of his financial condition, to continue further with the contract. This was certainly sufficient to require the plaintiff to receive them from the lessee in order to minimize her loss and the loss of the surety.

[2] 2. The claim is made that plaintiff's evidence as to the items of damage was not corroborated as is required by section 2175, Code 1915. The evidence shows that plaintiff kept a book of account in which she entered items of expenditure by her in caring for the sheep and the sums she received from the sales of lambs and wool....