Winston v. Allison

• Decision Date: 16 March 1932
• Docket Number: No. 3623.,3623.
• Parties: WINSTONv.ALLISON et al.
• Court: New Mexico Supreme Court

36 N.M. 120

9 P.2d 384

WINSTON

v.ALLISON et al.

No. 3623.

Supreme Court of New Mexico.

March 16, 1932.

Syllabus by the Court.

Question whether judgment is supported by substantial evidence is not reviewable in absence of findings or requests for findings, and exceptions.

The question as to whether a judgment in a case tried to the court is supported by substantial evidence is not reviewable in this court, unless the party appealing has either requested a finding of fact by the district court, and has excepted to a denial of the same, or has excepted to the giving of a finding by the trial court, which he desires to question in this court.

Appeal from District Court, Chaves County; Granville A. Richardson, Judge.

Action by Susie Mae Winston against Arthur Allison and another, doing business under the style and firm name of Allison & Arnston. The defendant George Arnston died pending the trial, and the case proceeded against the defendant Arthur Allison alone. Judgment in favor of the defendant, and the plaintiff appeals.

Affirmed, and cause remanded.

Question whether judgment is supported by substantial evidence is not reviewable in absence of findings or requests for findings, and exceptions.

J. D. Mell, of Santa Fé, and O. O. Askren, of Roswell, for appellant.

J. B. McGhee, of Roswell, for appellees.

PARKER, J.

The plaintiff, appellant, brought an action against a firm of real estate agents composed of W. Arthur Allison and George W. Arnston, in Chavez county, N. M., to recover a commission of 2 1/2 per cent. upon the selling price of $10,000, which plaintiff alleged the defendants made to one Dr. W. T. Neely for property in the city of Roswell, N. M., the plaintiff having caused the said Dr. Neely to go to the defendants with the view of purchasing property in the city of Roswell. The plaintiff alleged that her claim against the defendants was in pursuance of a contract between the plaintiff and the defendants, which had been performed by plaintiff causing said Dr. Neely to go to the defendants with the view of purchasing property in the said city of Roswell. It turned out, however, that the plaintiff in her proof failed to show that the firm of Allison & Arnston sold Dr. Neely any property, but, on the other hand, it shows that the defendant Allison sold him his own residence property and did not account to the firm of Allison & Arnston for any commission. It thus appears that there was a failure of proof on the part of plaintiff, in support of her claim against the firm of Allison & Arnston, and for that reason alone the judgment of the lower court must be affirmed. The defendant Arnston died before the cause was tried, and it proceeded against the defendant Allison alone.

In the trial the plaintiff testified herself, and put on other proof, that the defendant Allison made a contract with her for a sale of his property to Dr. Neely, and that he would pay her a commission of 2 1/2 per cent. on the selling price of the property. This testimony was denied by the defendant, Allison. The plaintiff argues here...