Ross v. Ringsby

• Decision Date: 10 June 1980
• Docket Number: No. 4226,4226
• Citation: 94 N.M. 614,614 P.2d 26,1980 NMCA 80
• Parties: Ted ROSS dba Syntronix Industries, Plaintiff-Appellee Cross-Appellant, v. George F. RINGSBY and Esther Ringsby, Defendants-Appellants Cross-Appellees.
• Court: Court of Appeals of New Mexico

Page 26

614 P.2d 26

94 N.M. 614

Ted ROSS dba Syntronix Industries, Plaintiff-Appellee Cross-Appellant, v. George F. RINGSBY and Esther Ringsby, Defendants-Appellants

Cross-Appellees.

No. 4226.

Court of Appeals of New Mexico.

June 10, 1980.

Oliver Burton Cohen, Cohen & Aldridge, Albuquerque, for defendants-appellants cross-appellees

Paul D. Gerber, Gerber & Ives, Santa Fe, for plaintiff-appellee cross-appellant.

OPINION

ANDREWS, Judge.

In this action appealing a judgment for plaintiff-appellee arising out of a claim of detainer and a counterclaim for specific performance on a contract, we are asked to resolve two questions. First, where the trial court, sitting without a jury, found a counter-offer did not operate as acceptance of a contract, was there sufficient evidence to support the finding? Second, if a contract did exist, should the trial court have allowed specific performance? These issues are to be resolved by our determination of whether terms which were altered in an acceptance of a contract sufficiently altered the substance of the contract as to create a counter-offer.

Plaintiff (Ross) listed a residence for sale with a realtor. After that listing had expired, defendant (Ringsby) made an offer through a selling realtor and original listing realtor, for the purchase of the residence. A conference telephone call was held which involved agents from both realtors, the plaintiff and defendant. Pursuant to that conference, defendants prepared an offer to purchase and mailed it to the plaintiff.

Before receiving the offer to purchase, plaintiff sent a mailgram accepting the purchase offer agreed upon over the telephone. This mailgram was admitted as an exhibit but has not been included in the appellate record. It appears from the testimony that no contract was formed by the mailgram; a written purchase agreement was contemplated. Unfortunately, the terms of the offer of purchase the defendants had mailed did not coincide with the subject matter of the phone conversation. Therefore, the plaintiff mailed a proposed addendum and a lease agreement for the period prior to the actual sale. The defendants' broker intercepted the addendum; never showing it to the defendants. ¹ Defendants, assuming they had a valid agreement, moved into the building and executed the lease which had been sent by plaintiff. First month's rent was paid. On the closing date specified in the purchase offer the closing did not occur. Sixteen days later the plaintiff, believing that the defendants had rejected the terms of the addendum they had actually never seen, sent a mailgram stating that the contract was no longer in effect. Forty-five days later plaintiff served notice to quit, and when the defendants refused, this action ensued.

Defendants contend that there was not substantial evidence adduced at trial to support findings of fact numbers 5, 6 and 8. ² We note that a certain degree of confusion is presented in this case. The source of this confusion seems to be the final sentence of the trial court's finding of fact number 8.

One of the additional conditions added to the acceptance was a provision that the seller had the right to continue offering the property for sale and if a subsequent offer were received, the defendants would have the right of first refusal to meet such new offer. This changed the sales contract to a modified option to buy with right of first refusal.

Though presented as a finding of fact, we believe that the finding that the addition of certain conditions resulted in the alteration of a sales contract into a modified option to buy with right of first refusal is actually a conclusion of law. As such is the case, the proper mode of review is not whether substantial evidence as to the question was presented but, whether the trial court correctly applied the law to the facts.

To determine whether the law was correctly applied we must view the facts of the case in a manner most favorable to the plaintiffs, as they prevailed at trial. To do so, we "indulge all reasonable inferences in support of the verdict, and will disregard all inferences or evidence to the contrary." Mascarenas v. Gonzales, 83 N.M. 749, 497 P.2d 751 (Ct.App. 1972).

There is little controversy as to what was actually written, or when the writings were sent. The only question presented is the legal implication of those writings. The addendum which is the basis of this question reads as follows (C) Seller reserves the right to continue taking "Back-Up" offers for the subject property until such time as buyer indicates in writing that all contingencies including the contingency for the sale of buyer's existing real property, the contingency pursuant to obtaining financial arrangements for the purchase of subject property, approval of title report and policy, and any and all contingencies pursuant to the purchase of the subject property, expressed or implied. If seller receives a "Back-Up" offer, seller agrees to so notify buyer and upon notification, buyer will have seven (7) days during which buyer will have the exclusive right of first refusal to proceed with this purchase agreement as outlined in this transaction at this time. Failure of buyer to notify seller in writing that all contingencies have been waived shall be deemed as an automatic release to seller from buyer of all obligations incurred by the execution of this purchase agreement, excepting those obligations incurred by buyer and seller under the terms and conditions of the lease agreement for the subject property.

Although the original listing of the property by the realtor had lapsed, it is clear that all involved knew the realtors were the agents of the parties. See Totah Drilling Co. v. Abraham, 64 N.M. 380, 328 P.2d 1083 (1958). Thus, as agents of the parties received or were informed of all relevant...