Thompson v. H. B. Zachry Co.

• Decision Date: 31 January 1966
• Docket Number: No. 7573,7573
• Citation: 75 N.M. 715,410 P.2d 740,1966 NMSC 17
• Parties: J. H. THOMPSON, Plaintiff-Appellant and Cross-Appellee, v. H. B. ZACHRY, CO., a corporation, Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 740

410 P.2d 740

75 N.M. 715

J. H. THOMPSON, Plaintiff-Appellant and Cross-Appellee, v. H. B. ZACHRY, CO., a corporation, Defendant-Appellee and Cross-Appellant.

No. 7573.

Supreme Court of New Mexico.

Jan. 31, 1966.

Shipley, Seller & Whorton, Alamogordo, W. C. Whatley, R. E. Riordan, Las Cruces, for appellant.

Keleher & McLeod, T. B. Keleher, Russell Moore, John B. Tittmann, Albuquerque, for appellee.

PER CURIAM.

The motion for rehearing of H. B. Zachry Co. is granted and the original opinion filed herein withdrawn and the following substituted therefor:

NOBLE, Justice.

Defendant H. B. Zachry Co., who was performing construction work on the McGregor Range, employed the plaintiff, Thompson, to perform certain surveying work at an agreed rate of compensation. Thompson was required to survey and stake the Hawk access road and sites for sixteen concrete launching pads, in accordance with drawings and specifications indicating their locations. It was discovered that Thompson had incorrectly located the road, but such revelation was not made until after the defendant had already done some construction work at the erroneous location. Plaintiff resurveyed the location without charge. Subsequently, two launching pads were also incorrectly located and the error corrected, but the defendant was required to rebuild forms at those two launching pads as a result.

Plaintiff sued for a balance claimed to be due for work performed, and the defendant counterclaimed for damages caused by the plaintiff's surveying errors. The plaintiff's complaint and the defendant's counterclaim were dismissed by the trial court and both parties independently appealed.

Plaintiff asserts that the trial court's conclusion that his complaint should be dismissed is not supported by any substantial evidence. While the attack appears to be strictly upon the lack of evidence to support the conclusion, implicit in such argument is the contention that the evidence would not support a finding of fact made the basis of the conclusion. We do not reach the question of the sufficiency of the evidence because a review of the court's decision makes it evident that there is no finding of fact to support the conclusion or judgment of dismissal. Under Rule 52(B)(a)(2) (Sec. 21-1-1(52)(B)(a)(2), N.M.S.A.1953), a court sitting without a jury is required to find those ultimate facts necessary to determine the issues i. e., the controlling facts without which the law cannot be correctly applied in rendering judgment. Star Realty Company v. Sellers, 73 N.M. 207, 387 P.2d 319. It is fundamental that a judgment cannot be sustained on appeal unless the conclusion upon which it rests finds support in one or more findings of fact. Star Realty Company v. Sellers, supra; Jontz v. Alderete, 64 N.M. 163, 326 P.2d 95; Isaac v. Seguritan, 66 N.M. 410, 349 P.2d 126; Consolidated Placers v. Grant, 48 N.M. 340, 151 P.2d 48. Indeed, defendant seems to concede in its brief that, even though some of the work may have been negligently performed by the plaintiff, he is nevertheless entitled to recover for...