Salazar v. Garde., 3519.
| Decision Date | 28 March 1931 |
| Docket Number | No. 3519.,3519. |
| Citation | 298 P. 661,35 N.M. 353 |
| Parties | SALAZARv.GARDE. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Motion for directed verdict at close of plaintiff's case is waived by defendant's introduction of evidence tending to establish defenses.
Motion for directed verdict at close of plaintiff's case is waived by introduction of defense evidence.
Parties to partido contract may stipulate for degree of care of property by bailee, nonobservance of which shall be cause for forfeiture.
Parties to partido contract may stipulate for kind and degree of care of property by bailee, nonobservance of which shall be cause for forfeiture.
Party to suit is entitled to instruction specifically submitting theory of breach of contract by adverse party, if supported by sufficient evidence.
A party has right to instruction specifically submitting his theory of breach of contract by adverse party; there being evidence to support it.
Trial court, in action for breach of partido contract, is under duty to specifically interpret its provisions.
Duty of trial court specifically to interpret provisions of written partido contract as to kind and degree of care of property required of bailee.
Where bailor, suing for breach of sheep partido contract, claimed breach of bailee's covenants, abstract instructions holding bailee to lesser degree of care than stipulated in contract held erroneous.
In suit by bailor in partido contract, claiming breach of bailee's covenants as to care of property as justifying repossession, held error by abstract instructions to hold bailee to lesser degree of care than stipulated in contract.
Appeal from District Court, Torrance County; Frenger, Judge.
Suit by Antonio Salazar against Celestino Garde. Judgment for the plaintiff, and the defendant appeals.
Reversed, and cause remanded, with direction.
Parties to partido contract may stipulate for degree of care of property by bailee, nonobservance of which shall be cause for forfeiture.
O. A. Larrazolo and H. O. Waggoner, both of Albuquerque, for appellant.
George W. Prichard, of Santa Fé, for appellee.
Salazar sued Garde for damages for breach of a sheep partido contract, dated November 1, 1928, providing for the delivery to plaintiff by defendant of 300 ewes and for the redelivery of an equal number of ewes of the same ages, at the end of the year, plus 20 lambs for each 100 head of ewes so delivered, and providing that, if for any reason such number of ewes could not be redelivered, three lambs should be accepted as equivalent to two ewes. As a breach of this contract, it was alleged that on March 14, 1929, the defendant, without just cause or excuse, repossessed himself of the sheep.
Defendant filed a cross-complaint, claiming that plaintiff had violated the contract in such manner that defendant was justified in terminating it and in repossessing the sheep, and was entitled to damages.
A jury found for the plaintiff. Judgment was entered upon the verdict, and defendant has appealed. The parties will be here designated as they were in the trial court.
[1] It is here contended that the trial court erred in overruling defendant's motion for a directed verdict at the close of plaintiff's case. As we have frequently held, however, the motion was waived when defendant went into his own case. State v. Analla, 34 N. M. 22, 276 P. 291.
Errors are also assigned in the matter of receiving and rejecting evidence. These need not be considered, in view of the conclusion we reach.
[2][3][4][5] The controlling question arises out of the instructions. Obviously, one of these parties had violated the contract and was entitled to damages. Obviously, defendant violated it, unless he could show a previous violation by plaintiff. As such previous violation, he pointed to two specific provisions of the contract: First, that plaintiff would “well and carefully herd, graze, feed, shelter *** and in all respects properly care for the said sheep and the products thereof, in such a manner as a prudent sheep owner would care for his sheep.” Second, that plaintiff would not “during the term of his contract, have any other sheep than those covered by this contract...
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