Visic v. Paddock

• Decision Date: 27 March 1963
• Docket Number: No. 7066,7066
• Citation: 382 P.2d 694,72 N.M. 207,1963 NMSC 59
• Parties: John VISIC, Jr., d/b/a Valley Hi Realty, Plaintiff-Appellant, v. Carl R. PADDOCK and Essie Paddock, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 694

382 P.2d 694

72 N.M. 207

John VISIC, Jr., d/b/a Valley Hi Realty Plaintiff-Appellant, v. Carl R. PADDOCK and Essie Paddock, Defendants-Appellees.

No. 7066.

Supreme Court of New Mexico.

March 27, 1963.

Rehearing Denied June 27, 1963.

Ertz & Beasley, Albuquerque, for appellant.

Threet & Threet, Albuquerque, for appellees.

CHAVEZ, Justice.

This is an action by John Visic, Jr., d/b/a Valley Hi Realty, appellant, to recover a real estate commission from Carl R. Paddock and Essie Paddock, appellees.

Appellant is a licensed real estate broker. He prepared a written listing agreement for the sale of appellees' motel which they signed on or about October 19, 1957. The listing agreement form was such that it could be used for either an exclusive right to sell or a nonexclusive right to sell. Prior to the time appellees executed the agreement, the form had been altered so that it provided for an exclusive right to sell. The listing agreement was fully completed and filled out at the time appellees signed the same. Appellees received a copy of the listing agreement from appellant. The agreement established the commission to be paid appellant, in the event a sale was effected, to be 5% on the first $100,000 of the sale price and 3% of the remainder of the sale price. The period of time during which the agreement was to be in force was between September 19, 1957, and October 1, 1958. On or about August 9, 1958, appellees entered into a contract for the sale of their motel with Jamil Steen through the Harper Realty Company. No commission was paid by appellees to appellant for this sale.

In addition to the foregoing, the trial court found that no consideration passed from appellant to appellees for the contract and that the intent of appellees was to give appellant the listing for the specific purpose of his representing them during negotiations for the sale of their motel with a Hereford, Texas, realtor.

The trial court, thereupon, concluded as a matter of law that fraud and deceit were practiced upon appellees by appellant and that, because of such fraud, the listing agreement was void and of no effect; that no consideration was given by appellant to appellees for the listing agreement; that the listing contract is unenforceable for lack of consideration; that appellees violated no contractual rights of appellant by selling their motel through the Harper Realty Company; and that appellant's complaint should be dismissed at his cost. From the judgment entered by the trial court, in accordance with its findings of fact and conclusions of law, appellant timely appealed.

Appellant's first contention is that appellees did not produce substantial evidence and did not sustain the burden of proof required under New Mexico law to support a conclusion of fraud on the part of appellant.

It this were a matter to be resolved by application of the substantial evidence rule, we would have no difficulty in concluding that the evidence adduced at the trial is amply sufficient to comply with the rule's requirements. However, this is not a situation to which the substantial evidence rule is applicable. Fraud was alleged by appellee and attempted to be proved. The trial court found fraud to exist. Therefore, for us to be able to sustain the finding of fraud, the record must contain clear and convincing evidence of the perpetration of a fraud. Lumpkins v. McPhee, 59 N.M. 442, 286 P.2d 299; Greene v. Esquibel, 58 N.M. 429, 272 P.2d 330; Frear v. Roberts, 51 N.M. 137, 179 P.2d 998; Berrendo Irrigated Farms Co. v. Jacobs, 23 N.M. 290, 168 P. 483. Upon reviewing the evidence of record, we are unable to perceive that the evidence is so clear and convincing as to support the conclusion of fraud.

The evidence pertinent to the issue of fraud is to the following effect. Appellees testified: That a Hereford, Texas, realtor telephoned them to inquire about the purchase of their motel; that they discussed the matter with appellant who told them that if they would give him the listing he would charge them a 5% commission rather than 6%; that no definite time limit on the listing was discussed between the parties; that nothing was said about a general listing or an exclusive listing; that the listing was for the Hereford, Texas, deal only; that they looked at the listing after it was written up and presented to them; that at the time they executed the agreement it was not completely filled out; that the words 'This is NOT AN EXCLUSIVE right to sell' were not marked out when they executed the agreement; that they did not receive a copy of the listing agreement that they would not have signed the agreement if the words 'This is NOT AN EXCLUSIVE right to sell' had been marked out at the time they executed it; and that the difference between an exclusive right to sell and a nonexclusive right to sell was not discussed.

Appellant and his wife testified: That the information on the listing agreement was all filled in except the tax data prior to the execution of the agreement by appellees; that the words 'This is NOT AN EXCLUSIVE right to sell' were crossed out prior to the execution of the agreement by appellees; that the ladies discussed the difference between exclusive and nonexclusive listings; that appellant's wife gave appellees a copy of the listing agreement and they put it on the kitchen shelf.

In Lumpkins v. McPhee, supra, we defined clear and convincing evidence when construed in the light...