Valley Country Club, Inc. v. Mender

• Decision Date: 09 April 1958
• Docket Number: No. 6297,6297
• Citation: 64 N.M. 59,1958 NMSC 42,323 P.2d 1099
• Parties: VALLEY COUNTRY CLUB, Inc., a New Mexico Corporation, Plaintiff-Appellee and Cross-Appellant, v. Savior MENDER, Defendant-Appellant and Cross-Appellee.
• Court: New Mexico Supreme Court

Page 1099

323 P.2d 1099

64 N.M. 59

VALLEY COUNTRY CLUB, Inc., a New Mexico Corporation Plaintiff-Appellee and Cross-Appellant, v. Savior MENDER, Defendant-Appellant and Cross-Appellee.

No. 6297.

Supreme Court of New Mexico.

April 9, 1958.

Garland, Sanders & Martin, Las Cruces, Howard F. Houk, Santa Fe, for appellant.

Harry L. Bigbee, Donnan Stephenson, Matias A. Zamora, Harl D. Byrd, Santa Fe, for appellee.

McGHEE, Justice.

The appellee's right to lease a liquor license under the public policy of the state of New Mexico is challenged in this case, as well as the right of the District Court of Santa Fe county to determine the issues under our venue statutes over the protest of the appellant.

The appellee, Valley Country Club, the owner of a liquor license was enjoined from conducting gaming devices on the premises and their building was padlocked. Later, upon the execution of a bond the premises were opened and operated under Liquor License No. 329 by an employee who was unable to operate profitably.

Thereafter, an agreement called a 'lease contract' covering the building and license was made with appellant and filed in accordance with the regulations of the Division of Liquor Control. At the expiration of the lease the lease was extended in a 'rider to the lease contract' which contract was later breached by appellee in raising the rent and changing the appellant's status to a tenant from month to month. The appellant stayed on in his changed status for several months and then made application, as purported owner of Liquor License No. 329, to defendant, Hilton Dickson then Chief of the Division of Liquor Control to transfer the license to a new location.

On suit by appellee to have its rights in the license declared and to enjoin the appellant from transferring the license to a new location, the court found that the appellant held the license in trust and was obligated to reassign the license to appellee as appellant had no present right, title or interest in the license, and enjoined the appellant from acting to remove the license from the premises. The court below held the case moot as to defendant Dickson, as he was no longer Chief of the Division, but did not dismiss the case as to him.

The appellant urges as error that the venue of the action was in Dona Ana county, the county where the contract was made and to be performed and the appellant resided, rather than Santa Fe county, and that the 'lease contract' could only be intended as a sale of the license to appellant as the public policy of this state prohibits the leasing of liquor licenses.

Although the statute, 21-5-1, NMSA 1953 Comp. provides that a suit can be brought where the contract was made or is to be performed, the same statute also provides that a suit can be brought against a non-resident in any county of the state, and at the time of bringing the suit the defendant Mender was a resident of Texas, even though he was served with process in Dona Ana county where, as above stated, the contract was made and to be performed. There is more than one place of possible venue under our statute and because the defendant was a non-resident the case could have been brought in any county in the state of New Mexico, and, therefore, venue was properly laid in the District court of Santa Fe county. Subdivision F of 21-5-1, NMSA 1953 Comp. State ex rel. Appelby v. District Court of Fifth Judicial District, 1942, 46 N.M. 376, 129 P.2d 338. It is, therefore, unnecessary to decide how venue was affected by the case becoming moot as to the defendant Dickson, but who was not dismissed as a party, and whose successor was not substituted in his stead.

The appellant urges that the public policy of the state precludes the contract being construed as a leasing although the contract explicitly states that it is a 'lease contract' because of the provisions of 46-5-15(c), NMSA 1953 Comp.

'The licenses provided for in this act shall be assignable and transferable to persons who are found by the chief of division to have the qualifications to receive licenses in the first instance, and whose application for transfer and approval of assignment have been approved by the chief of division in writing. * * *'.

Appellant urges that the words 'assignable' and 'transferable' mean a giving of one's complete interest and, therefore, exclude a leasing. Black's Law Dictionary, 4th Ed. defines the words as follows:

'assign: to transfer; as to assign property or some interest therein.' 'transfer: v. to convey or remove from one place, person, etc. to another; pass or hand over from one to another. Specif. to make over the possession or control of (as to transfer a title to land; sell or give.)'

Unless the contrary appears, statutory words are presumed to be used in their ordinary and usual sense and with the...