State v. Hesselden Const. Co.

• Citation: 80 N.M. 121,452 P.2d 190,1969 NMSC 36
• Decision Date: 24 March 1969
• Docket Number: No. 8654,8654
• Parties: STATE of New Mexico, for the Use of Truman THORNTON, Plaintiff- Appellant, v. HESSELDEN CONSTRUCTION COMPANY and United States Fidelity & Guaranty Company, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 190

452 P.2d 190

80 N.M. 121

STATE of New Mexico, for the Use of Truman THORNTON Plaintiff- Appellant, v. HESSELDEN CONSTRUCTION COMPANY and United States Fidelity &amp Guaranty Company, Defendants-Appellees.

No. 8654.

Supreme Court of New Mexico.

March 24, 1969.

[80 NM 121] A. H. McRae, James E. Womack, John C. Wheeler, Albuquerque, for appellant.

Foley, Smith & Piper, Albuquerque, for appellees.

OPINION

CARMODY, Justice.

Plaintiff, as a subcontractor, sought to recover the sum of $3,357.97 which he claimed was owed on two painting subcontracts and the further sum of $3,803.54 for extra work. Following trial to the court, judgment was entered in favor of the defendants, and plaintiff appeals.

The two questions raised on appeal are primarily matters of substantial evidence and relate to the findings made by the trial court, or its refusal to find as requested by the plaintiff.

The defendant construction company was the prime contractor for certain buildings at New Mexico State University. It entered into subcontracts with the plaintiff Thornton whereby he was to do painting and finishing work in accordance with the plans and specifications no two separate buildings, the total price for both being $28,457.00, $25,099.03 was paid, but the remainder due on the contracts and certain extras was not. The trial court found that the only extras for which the contractor agreed to pay amounted to $901.00 and that the contractor did not authorize other extras claimed by the plaintiff, nor did it agree to pay him any additional amounts. The trial court further found that the plaintiff failed to prove any definite amount to which he might be entitled by reason of damage or changes in construction, and also found that Thornton did not perform any work or furnish any labor, other than the $901.00 item mentioned, which he was not required to do under the subcontracts. The court then determined that the plaintiff left at least one of the jobs before it was completed, did not return, and failed to finish the painting; as a result, Hesselden was required to complete the job, and did not agree to do so or bear the expense thereof. The court found that the cost of the completion by Hesselden was $4,379.70, which exceeded the remaining subcontract balances plus extras. From the findings summarized above, the court concluded that the cost to Hesselden exceeded the balances and extras and plaintiff could not recover. As a result, judgment was entered that the plaintiff take nothing and the case be dismissed.

Plaintiff first complains that the court erred in its refusal to find that the plaintiff was entitled to recover the reasonable value of work performed outside the written contract. In making this argument, plaintiff makes what should probably be termed a generalized attack upon certain findings without naming them and actually failing to challenge any one of the trial court's findings. As a matter of fact, even in making the generalized attack, plaintiff has failed to set forth any of the testimony which supported the findings and has merely cited general testimony which might be construed to the contrary. In any event, the generalized attack on the findings must fail under the provisions of our rules and many decisions. Michael v. Bauman, 76 N.M. 225, 413 P.2d 888 (1966); Scott v. Homestake-Sapin, 72 N.M. 268, 383 P.2d 239 (1963); Bogle v. Potter, 68 N.M. 239, 360 P.2d 650 (1961); and Gale, Post No. 2182 V. of F.W., of Farmington v....