Sanders v. Freeland
| Citation | 64 N.M. 149,325 P.2d 923,1958 NMSC 49 |
| Decision Date | 23 April 1958 |
| Docket Number | No. 6205,6205 |
| Parties | Sam SANDERS, Plaintiff-Appellant, v. J. B. FREELAND, Defendant-Appellee, Wayne Adams, Intervenor-Appellant. |
| Court | Supreme Court of New Mexico |
Reese, McCormick, Lusk & Paine, Carlsbad, A. J. Losee, Artesia, for plaintiff-appellant.
Bean, Osborn & Snead, Roswell, for intervenor-appellant.
Brown & Brainerd, Roswell, for defendant-appellee.
On May 19, 1954, appellant made a written contract with appellee to sell his equity in a farm which was conditioned upon completion of appellee's May 14 contract of sale and exchange of his farm plus $40,000 to one Haskel Markham. The sale to Markham was never completed, and the defendant did not go through with his purchase from the plaintiff. The plaintiff brought action on the contract's liquidated damages clause.
Plaintiff's agent to sell the property is an intervenor in this action for his commission.
The court found that the contract between defendant and Markham was conditioned on both parties giving marketable title and by its terms was not to be performed before July 1. The contract between appellant and appellee was conditioned upon completion of the sale between the appellee and Markham and by its terms had to be completed by June 10.
The appellant appeals from the holding that there was no enforceable contract between appellant and appellee to which the penalty provision could attach because the condition precedent was never performed.
The trial court refused the appellee's requested conclusion that the contract was impossible of performance. However, the findings of fact that the May 14 contract was a condition precedent to liability on the May 19 contract and was not to be performed until July 1 allows of no conclusion but that the May 19 contract which had to be performed by June 10 was impossible of performance.
Evidence at the trial showed that appellee would not have the money to buy appellant's farm until the deal with Markham was completed and that appellant insisted upon the contract being performed by June 10. Appellant's real estate agent wrote the May 14 contract between appellee and Markham, and appellant's lawyer drew up the May 19 agreement between appellant and appellee so that appellant was fully aware of all the terms of both contracts. Both contracts recited that time was of the essence.
The May 14 contract of sale between appellee and Markham reads:
'* * * and that this trade deal shall not be closed out prior to July 1, 1954.'
The pertinent provisions of the May 19 contract of sale between appellant and appellee reads (appellant is referred to as second party, appellee as third party, and appellant's vendor as first party):
'* * * Whereas, third parties have sold a farm located one and one half miles southwest of Dexter, New Mexico, containing 102 acres to Haskel Markham, conditioned upon purchaser obtaining a $20,000.00 loan commitment on said farm, and * * *.
The appellant argues that the recitation 'this trade deal shall not be closed out prior to July 1, 1954' means that the contract could not be performed after July 1. If the parties meant to say the opposite of what they actually said they could have easily substituted the word 'after' for the word, 'prior'.
The court below ruled each contract alone was unambiguous, and the terms of a contract where unambiguous are conclusive. Fuller v. Crocker, 1940, 44 N.M. 499, 105 P.2d 472. The contracts must be read together and that is when the ambiguity arises. The ambiguity cannot be resolved by resort to the overall intent of the parties because there is not complete identity of parties to the two contracts. What appellant and appellee might have intended cannot change what the third party, Markham, agreed to, and the court cannot effectuate the intent of appellant and appellee by changing the contract made by Markham.
The May 19 contract was, therefore, impossible of performance because it had to be completed by June 10 and was conditioned upon completion of the May 14 contract of sale which could not be completed until July 1. Impossible conditions cannot be performed; and if a person contracts to do what at the...
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Canaras v. Lift Truck Services, Inc.
...on the supposed possibility of performance, there is a mistake which renders such provision void. See Sanders v. Freeland, 64 N.M. 149, 152, 325 P.2d 923, 925 (1958), where the vendor, on May 19, 1954, contracted with a purchaser to sell his interest in a farm conditioned upon completion of......
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Terrel v. Duke City Lumber Co., Inc., 878
...as Terrel produced. The parties, by their conduct, 'wrote' the contract. No more specificity is required. Compare Sanders v. Freeland, 64 N.M. 149, 325 P.2d 923 (1958). 4. Parol Evidence Rule. The parol evidence rule is inapplicable here. The contract shown by the 'course of conduct' was se......
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Board of Educ., Gadsden Independent School Dist. No. 16 v. James Hamilton Const. Co.
...(1991). In order to be binding as sufficient consideration, a promise must be "lawful, definite and possible." Sanders v. Freeland, 64 N.M. 149, 152, 325 P.2d 923, 925 (1958). Under the terms of the Agreement and Instructions, Buyer gave no financial consideration and made no "definite" pro......
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Davies v. Boyd
...v. Crocker, 44 N.M. 499, 105 P.2d 472; Hoge v. Farmers Market & Supply Co. of Las Cruces, 61 N.M. 138, 296 P.2d 476; Sanders v. Freeland, 64 N.M. 149, 325 P.2d 923. See Moore v. Freeman, 58 N.M. 139, 266 P.2d 674, 41 A.L.R.2d In our view, the contracts, in this case, does not provide that s......