S & W Trucks, Inc. v. Nelson Auction Service, Inc.
| Decision Date | 27 June 1969 |
| Docket Number | No. 296,296 |
| Citation | 80 N.M. 423,1969 NMCA 58,457 P.2d 220 |
| Parties | , 6 UCC Rep.Serv. 830 S & W TRUCKS, INC., Plaintiff-Appellant, v. NELSON AUCTION SERVICE, INC., Defendant-Appellee. CHICAGO PNEUMATIC TOOL COMPANY, Plaintiff-Appellant, v. NELSON AUCTION SERVICE, INC., Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
This appeal relates to the liability of an auctioneer to certain claimants whose claims, though separately filed, were consolidated for the purpose of trial and appeal. Each complaint purports to state a cause of action in conversion based upon a claimed wrongful distribution of the proceeds of an auction sale. The appeal is from a judgment dismissing the complaints as against the auctioneer. We affirm the judgment.
Monarch Drilling Company, a Co-Partnership, (Monarch) was indebted to S & W Trucks, Inc., (S & W) and Chicago Pneumatic Tool Company (Chicago), and at their instance executed and delivered financing agreements to each of them to secure payment of the amounts owing. The financing agreements cover identical property consisting of drilling rigs belonging to Monarch, together with certain related property.
These agreements were executed and delivered upon condition that S & W and Chicago consent to the holding of an auction sale of Monarch's assets including the drilling rigs and related property and, further, that neither of them would prevent or interfere with such sale. Monarch agreed that both S & W and Chicago would receive the full amount of their claims from the proceeds of the auction sale. Neither the consent to the sale, nor the agreement providing for payment from the proceeds of sale were stated in the financing agreements.
It is undisputed that the consent on the part of S & W and Chicago to the auction sale had the effect of waiving their liens upon the rigs and related property, at least for the purpose of the sale. Clovis National Bank v. Thomas, 77 N.M. 554, 425 P.2d 726 (1967).
After delivery of the financing agreements Monarch entered into a contract with Nelson Auction Service, Inc., (the auctioneer) to conduct a public auction sale of its assets, including the property subject to the financing agreements. The contract with the auctioneer included a provision for the payment of a percentage of the receipts of sale for services by the auctioneer, and likewise provided that Monarch would pay the sum of $3,000.00 for the purpose of advertising the sale.
Prior to the sale, Monarch delivered a letter to the auctioneer dated October 22nd, 1965, the material portion being as follows:
'This letter shall evidence our agreement with you as to our contract with you signed this date concerning the sale of our drilling rigs and related equipment located in our Hobbs, Lea County, New Mexico yard. This sale shall be held on December 1, 1965.
You are authorized to pay the sum of $8,815.59 from the proceeds of this sale to S & W Trucks, Inc., P.O. Box 792, Hobbs, New Mexico.'
A similar letter bearing the same date and relating to the claim of Chicago in the sum of $10,400.62 was delivered to the autioneer.
The sale was conducted and it appears that the proceeds were not sufficient to pay in full all of Monarch's secured creditors. Monarch then directed the auctioneer to make payment of certain stated amounts to its various creditors. The amounts paid S & W and Chicago in accordance with this direction were substantially less than the total of their claims.
It is the contention of S & W and Chicago that Monarch assigned to each of them a portion of the proceeds of the sale sufficient in amount to discharge the indebtedness, that the auctioneer had notice of the assignments and although the proceeds received by him for distribution were adequate to pay the amounts owing to both S & W and Chicago, the auctioneer failed to fully honor the assignments, and consequently become personally liable to S & W and Chicago for the unpaid portion of their claims.
Both S & W and Chicago rely upon the letters of October 22nd, 1965, as constituting assignments to them and likewise as notice to the auctioneer of the assignments. The trial court, however, concluded that these letters were insufficient to effect assignments and likewise failed as notice of assignments. We agree with these conclusions.
Although the language of an assignment may be informal, it must at least show an intention on the part of the owner of a right or...
To continue reading
Request your trial
-
Banque de Paris et des Pays-Bas v. Amoco Oil Co.
...Commercial Savings Bank v. G & J Wood Products Co., 46 Mich.App. 133, 207 N.W.2d 401 (1973); S & W Trucks, Inc. v. Nelson Auction Service, Inc., 80 N.M. 423, 457 P.2d 220 (Ct.App.1969). Absent receipt by Amoco of a form reflecting a commercially recognizable assignment, and in the face of e......
-
Old Kent Bank-Southeast v. City of Detroit
... ... by Morrison, as was the Internal Revenue Service. The city was indebted to Morrison. When the ... v. L.A. Davidson, Inc., 95 Mich.App. 358, 290 N.W.2d 144 (1980). We ... --------------- ... 1 See S & W Trucks, Inc. v. Nelson Auction Service, Inc., 80 N.M ... ...
-
BarclaysAmerican/Business Credit, Inc. v. E & E Enterprises, Inc.
...party cannot be considered as notification that such sum has been assigned to the third party. S & W Trucks, Inc. v. Nelson Auction Service, Inc., 80 N.M. 423, 457 P.2d 220, 222 (1969). Likewise, merely directing E & E to Barclays to discuss obtaining S-3 and S-4 did not necessarily give no......
-
Raley v. Milk Producers, Inc., 2796
...as milk, are included in the definition of "farm products". Section 50A-9-109(3). In the case of S & W Trucks, Inc. v. Nelson Auction Service Inc., 80 N.M. 423, 457 P.2d 220 (Ct.App.1969), this Court seemed to agree with a district court decision that the consent to the sale of collateral w......