Stevenson v. Louis Dreyfus Corp., Nos. 19,300

• Docket Nº: Nos. 19,300
• Citation: 811 P.2d 1308, 112 N.M. 97, 1991 NMSC 51
• Case Date: May 20, 1991
• Court: Supreme Court of New Mexico

Page 1308

811 P.2d 1308 112 N.M. 97 J. Randall STEVENSON, Plaintiff-Appellee,
v.
LOUIS DREYFUS CORPORATION, Defendant-Appellant. Nos. 19,300, 19,231. Supreme Court of New Mexico. May 20, 1991.

Keleher & McLeod, Robert H. Clark, Albuquerque, Berryhill, Benjamin, Cage & North, Jack W. Berryhill, Denver, Colo., for defendant-appellant.

Hunt & Currier, Charles C. Currier, Roswell, for plaintiff-appellee.

OPINION

FRANCHINI, Justice.

Louis Dreyfus Corporation (Dreyfus) appeals from a Judgment upon Jury Verdict awarded to Stevenson in the amount of $104,584.50 plus interest at the rate of 15 percent per annum beginning August 3,

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[112 N.M. 98] 1988, in addition to costs and attorney fees. The judgment was based on the jury's finding that: (1) a contract existed between the parties, (2) Dreyfus breached the contract, (3) total damages suffered by Stevenson were $34,861.50, (4) Dreyfus' actions violated the New Mexico Unfair Practices Act, and (5) Dreyfus' violation of the Act was willful. Based upon the finding of a willful unfair trade practice, the judge trebled the damages and awarded attorney fees.

Dreyfus does not challenge the jury award of $34,861.50 in compensatory damages for breach of contract. Dreyfus argues on appeal that the court should have applied Colorado law, and that Stevenson did not establish a violation by Dreyfus of the New Mexico Unfair Practices Act, NMSA 1978, Secs. 57-12-1 to -22 (Repl.Pamp.1987 & Cum.Supp.1990). We affirm the court on its choice of law and reverse on its denial of Dreyfus' motion for a directed verdict on the Unfair Practices Act claim.

FACTS

Stevenson's father, an employee in the family business, received a call from Jones, the manager of Hill Top Feeders, Inc. (HTF) in which Jones offered to sell cattle owned by Dreyfus. The Dreyfus cattle were being pastured at HTF; and Jones, according to standard industry practice, was authorized to arrange for their sale. After several telephone conversations, the parties agreed to a sale. Jones instructed Stevenson to send a $17,080 down payment check to HTF, which Stevenson did on June 29, 1989.

At the same time, Jones contacted Frank Seckler of Seckler Company, an agent of Dreyfus, to advise him that he could sell some of the Dreyfus cattle at HTF to Stevenson. Seckler prepared a contract for the sale from a written form which he signed on behalf of Dreyfus and sent to Jones to forward to Stevenson. The contract contained the following provision typed in: "Stevenson Brothers must call Seckler Co. in Denver by Nov. 11, 1988 to price the cattle." The contract also provided that "Colorado law shall be binding...." The contract contained no provision for the recovery of attorney fees by either party in the event of a breach.

By July 14, 1988, Stevenson had not heard or received anything from Dreyfus or HTF confirming the sale. He called HTF and Jones assured him "everything was okay." In fact, everything was not "okay." Jones had failed to forward the contract to Stevenson. Jones had also failed to forward the $17,080 down payment from Stevenson to either Seckler or Dreyfus. Consequently, by mid-July 1988, Stevenson believed he had a contract with Dreyfus, while Dreyfus and Seckler thought that Stevenson had failed to sign the contract or make the required down payment. Additionally, about the middle of July 1988, Seckler received information which caused him concern about the care the Dreyfus cattle were receiving at HTF and the possibility they had been double-mortgaged. A Seckler representative sent to HTF found a "real mess." Cattle were missing and not being fed, and HTF was not paying its bills. Seckler had the Dreyfus cattle removed and sold. He also canceled the contract with Stevenson in light of the discovery of what was happening at HTF and because Seckler never received a signed contract or a down payment from Stevenson.

CHOICE OF LAW

The determination as to the law applicable in a case is a function of the trial court, and this determination is reviewable by the appellate court. Gonzales v. Garcia, 89 N.M. 337, 338-39, 552 P.2d 468, 469-70 (1976). Although parties are free to choose by contract a law to govern the performance and enforcement of contractual arrangements between them, see Nez v. Forney, 109 N.M. 161, 783 P.2d 471 (1989), the parties in this case did not do so. The written contract, which Dreyfus contends specifies Colorado law as the applicable law, was never executed by Stevenson, nor was it ever presented to Stevenson for

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[112 N.M. 99] execution. It is elementary in contract law that mutual assent must be expressed by parties to an agreement. Trujillo v. Glen Falls Ins. Co., 88 N.M. 279, 280, 540 P.2d 209, 210 (1975). Acceptance of an offer must be manifestation of unconditional agreement to all of the terms of the offer and an intention to be bound thereby. Tatsch v. Hamilton-Erickson Mfg. Co., 76 N.M. 729, 733, 418 P.2d 187, 189 (1966). Any additional terms in the confirmation of the oral contract merely constituted an offer. Cf. Polhamus v. Roberts, 50 N.M. 236, 239, 175 P.2d 196, 198 (1946) (reply to offer which added qualifications was a counter offer). Stevenson was not bound by Colorado law when the only claim that it should apply was founded upon a written instrument that was never signed by the party against whom enforcement was sought. The unexecuted contract was but one...