Sterling v. B. & E. Constructors, Inc.

• Decision Date: 21 December 1964
• Docket Number: No. 7525,7525
• Citation: 397 P.2d 729,74 N.M. 708,1964 NMSC 256
• Parties: Bruce STERLING, d/b/a Sterling Construction Company, Plaintiff-Appellee, v. B. & E. CONSTRUCTORS, INC., and Trinity Universal Insurance Company, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 729

397 P.2d 729

74 N.M. 708

Bruce STERLING, d/b/a Sterling Construction Company Plaintiff-Appellee, v. B. & E. CONSTRUCTORS, INC., and Trinity Universal Insurance Company, Defendants-Appellants.

No. 7525.

Supreme Court of New Mexico.

Dec. 21, 1964.

Dazzo, Dazzo & Ashby, Albuquerque, for appellants.

Palmer & Frost, Farmington, for appellee.

COMPTRON, Chief Justice.

This is an action by the plaintiff to recover the sum of $1,000.00 for services performed by him for the defendant, B. & E. Constructors, Inc. Trinity Universal Insurance Company, surety for B. & E. Constructors, Inc., was joined as a defendant. The appeal is from a judgment for the plaintiff, and from a dismissal of the counterclaim of B. & E. Constructors, Inc. seeking reimbursement for sums paid to a third party for the performance of work which it alleges the plaintiff failed to perform. Since, admittedly, the defendant insurance company will be bound by the mandate of this court, our mention herein of appellant will refer to the B. & E. Constructors, Inc.

The appellant was a general contractor for the Bureau of Indian Affairs on a school construction project at Wide Ruins, Arizona. In August, 1961, its president entered into a verbal contract with the appellee to do site grading work on the project. A portion of the work was to be done on an hourly basis, and it was agreed that the appellee would receive 18 cents for each cubic yard of earth moved by him. The appellee commenced work about the middle of September, 1961, and, on or about December 5, 1961, after going over the project with the appellee, the appellant's superintendent told him there was nothing more for him to do and terminated his work. Thereafter, the appellee went to the appellant's office in Albuquerque where he was furnished by its president with a description of the work done by him and with figures representing the number of cubic yards of earth he had moved. Based upon these figures, the appellee prepared and submitted his statement for services. Part payment was received in December, 1961, and on March 8, 1962, the appellee received a remittance advice from the appellant, with a check for the balance 'Less retainage on Oxidation ponds until checked $1,000.00.' This action was commenced on the appellant's subsequent refusal to pay the amount retained.

Under its points relied upon for reversal, the appellant challenges the sufficiency of the evidence to support two of the court's findings of fact, and claims error by the court in denying its requested findings to the contrary. The challenged findings are:

'7. That pursuant to said verbal agreement the plaintiff performed all work and construction which he was obligated to perform under the oral contract, on or before December 5, 1961, at which time the Superintendent of the defendant B. & E. Constructors, Inc., terminated the work of the plaintiff; that at said time and place the Superintendent was acting within the scope of his authority and agency as Superintendent for the defendant.

'8. That any dirt work performed by or for the defendant B. & E. Constructors, Inc., after December 5, 1961, was dirt work not within the scope of the verbal contract entered into between plaintiff and defendant B. & E. Constructors, Inc.'

In considering whether these findings are supported by substantial evidence we are required to view the evidence in its most favorable light to support them. Frederick v. Younger Van Lines, 74 N.M. 320, 393 P.2d 438; Jackson v. Goad, 73 N.M. 19, 385 P.2d 279. And, where the evidence is conflicting, it is not the function of this court to weigh the evidence or the credibility of the witnesses but to resolve the conflicts in favor of the successful party and to indulge all reasonable inferences in support of the judgment. Bogle v. Potter, 72 N.M. 99, 380 P.2d 839; Dodson v. Eidal Mfg. Co., 72 N.M. 6, 380 P.2d 16.

Bearing these rules in mind, we have examined the evidence as it relates to the verbal contract and to the scope of the authority of the superintendent. The substance of the testimony of the appellee is that the verbal agreement was made over the telephone and that he had neither seen the plans and specifications for the project nor agreed to move any specific number of yards of dirt; that he was to work for the appellant as he had in the past, to move his equipment on the job before any construction was begun and do the initial dirt moving either according to the engineer's stakes which marked the cut or fill to be made, or at the direction of an engineer or...