Rubenstein v. Weil, 7663

Decision Date22 November 1965
Docket NumberNo. 7663,7663
Citation408 P.2d 140,75 N.M. 562,1965 NMSC 137
PartiesLouis RUBENSTEIN and Howard M. Rosenthal, Plaintiffs-Appellants, v. Robert H. WEIL and Suzanne H. Weil, Defendants-Appellees.
CourtNew Mexico Supreme Court

Stephenson & Olmsted, Santa Fe, for appellants.

Kellahin & Fox, Santa Fe, for appellees.

NOBLE, Justice.

Louis Rubenstein and Howard M. Rosenthal, plaintiffs below, have appealed from a judgment dismissing their complaint for failure to state a claim upon which relief can be granted.

The facts upon which the case rests where the complaint is attacked as failing to state a cause of action are the facts alleged in the complaint. Jones v. International Union of Operating Engineers, 72 N.M. 322, 383 P.2d 571.

The facts here may be summarized from the allegations of the complaint and its attached exhibits, thus: The plaintiffs entered into a written contract with Robert H. Weil and his wife, defendants below, whereby the parties expressed their intention to jointly participate in the development of 2010.52 acres of State land in Snata Fe Countu, which was included in a larger tract of some 7300 acres of State land. Defendants agreed to bid on the land at public sale and if they were successful in acquiring it at $10 or less per acre, they agreed to sell and plaintiffs to buy an undivided one-half interest in the 2000-acre tract. If defendants acquired the land at a price in excess of $10 per acre, plaintiffs were given an option to buy a one-half interest in the 2000-acre tract at a price to be computed on a formula, reading:

'The per acre price to the Purchaser here is the amount of the per acre price on the 7,300 acres plus $1.00 per acre divided by two times 2,010.52, to be paid the Sellers here by the Purchasers here on or before December 10th, 1962.'

Defendants did contract with the State to buy the entire tract for $377,990.00, payable in thirty years. The option provided that upon its exercise plaintiffs could require defendant to pay the entire balance due to the State Prior to plaintiffs being required to pay for the one-half interest in the 2000-acre tract. This was so defendants could transfer title to plaintiffs. On July 9, 1962, plaintiffs wrote defendants advising that they exercised their option to purchase and demanded that defendants pay the balance owing on their contract with the State. Among other things, the letter said: 'The formula price therein contained is $52.36 X 2,010.52 acres, divided by 2, for an undivided half interest, which sum is $52,635.42.' There was also attached to the complaint a letter from defendants to the escrow agent, reading:

'The purpose of this letter is to instruct you not to deliver the deed in your possession to Mr. Rubenstein or Mr. Rosenthal since I have informed them that it is impossible to complete this matter.'

A complaint which is challenged for failure to state a cause of action is to be examined in the light of the rule that all facts well pleaded are to be taken as true, and that the complaint will only be dismissed where it appears that under no state of facts provable under the claim could plaintiff recover or be entitled to relief, Jernigan v. New Amsterdam Casualty Company, 69 N.M. 336, 367 P.2d 519; Fullerton v. Kaune, 72 N.M. 201, 382 P.2d 529. So viewing the complaint here, we think the trial court erred in dismissing it.

Section 20-2-8, N.M.S.A.1953, reading:

'Every contract in writing hereafter made shall import a consideration in the same manner and as fully as sealed instruments have heretofore done[,]'

makes the option agreement sufficient to withstand the attack of a motion to dismiss for failure to allege consideration. Flores v. Baca, 25 N.M. 424, 184 P. 532.

Defendants suggest that the formula for computing the purchase price of the one-half interest in the 2010.52-acre tract, expressed in the written agreement between the parties is ambiguous. They have suggested that the formula is susceptible of several different constructions as the amount of the purchase price. We think it would serve no useful purpose to discuss each of them here. A cardinal rule in the construction of a contract is to give it the meaning intended by the parties, Fuller v. Croker, 44 N.M. 499, 105 P.2d 472; Eagle Tail, Inc. v. Orris, 69 N.M. 386, 367 P.2d 700; Hondo Oil & Gas Co. v. Pan American Petroleum Corp., 73 N.M. 241 387 P.2d 342; and courts are primarily interested in giving effect to such intention of the parties rather than to the technical verbiage used to express it. Courts will not resort to grammatical niceties or technicalities of punctuation unless they may be utilized to make plain that what is otherwise obscure. Hughes v. Samedan Oil Corp., 166 F.2d 871 (10th Cir.1948).

The defendants seriously argue that their contract with the State,...

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7 cases
  • Spingola v. Spingola
    • United States
    • Supreme Court of New Mexico
    • June 5, 1978
    ...We will not read such a waiver into the settlement. Owen v. Burn Const. Co., 90 N.M. 297, 563 P.2d 91 (1977); Rubenstein v. Weil, 75 N.M. 562, 408 P.2d 140 (1965); Boylin v. United Western Minerals Company, 72 N.M. 242, 382 P.2d 717 (1963). The trial court was in error in presuming the moth......
  • Balizer v. Shaver
    • United States
    • Court of Appeals of New Mexico
    • February 5, 1971
    ...a claim upon which relief can be granted, facts well pleaded are to be treated as the facts upon which the case rests. Rubenstein v. Weil, 75 N.M. 562, 408 P.2d 140 (1965). Consequently, a decision in this court has its basis in such facts. The named plaintiffs, by the first cause of action......
  • Owen v. Burn Const. Co.
    • United States
    • Supreme Court of New Mexico
    • April 18, 1977
    ...contract by construction and the court must interpret and enforce the contract which the parties made for themselves. Rubenstein v. Weil, 75 N.M. 562, 408 P.2d 140 (1965); Boylin v. United Western Minerals Company, 72 N.M. 242, 382 P.2d 717 (1963); Davis v. Merrick, 66 N.M. 226, 345 P.2d 10......
  • Kirby Cattle Co. v. Shriners Hospitals for Crippled Children
    • United States
    • Court of Appeals of New Mexico
    • December 2, 1975
    ...that under no state of facts provable under the claim could plaintiff recover or be entitled to relief . . ..' Rubenstein v. Weil, 75 N.M. 562, 564, 408 P.2d 140, 141 (1965). The 'first refusal' theory relied on by Kirby is established in law as a basis upon which a claim for relief can be ......
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