Witt v. Cuenod

• Decision Date: 02 October 1897
• Citation: 9 N.M. 143,50 P. 328
• Parties: WITT et al.v.CUENOD et al.
• Court: New Mexico Supreme Court

9 N.M. 143

50 P. 328

WITT et al.

v.CUENOD et al.

Supreme Court of the Territory of New Mexico.

Oct. 2, 1897.

Appeal from district court, Eddy county; before Justice H. B. Hamilton.

Bill by George W. Witt and another, under the firm name of Witt Bros., against C. Cuenod and others, doing business under the firm name of L. Ramnez & Co. From a decree in favor of complainants, defendants appeal. Affirmed.

Appellees, under the firm name of Witt Bros., brought in the district court of Eddy county their bill for foreclosure of a chattel mortgage against appellants as partners doing business under the firm name of L. Ramnez & Co. In addition to an answer, to which replication was filed, appellants filed their cross bill praying for a rescission of the contract upon which the note and mortgage were founded, and for said note and mortgage to be delivered up for cancellation. The cause was referred to an examiner to take the proofs, and report the same to the court. After the testimony taken was filed, an order was made referring the proofs to a special master to report his findings of fact and conclusions of law thereon. The master reported, recommending that the contract be rescinded, and the note and mortgage delivered up for cancellation. Exceptions were filed by appellees, and the chancellor sustained same, finding that the master's conclusions of law were erroneous. Decree was thereupon rendered in favor of appellees for the full amount of the note and interest, for solicitor's fees, and for expense in and about the caring for the property covered by the decree of foreclosure. From this decree an appeal is taken. The transcript of the record contains the pleadings, orders, report of master, and decree, but not the proofs taken in the case; the appellants contending that, if more is needed to a proper review of the case, it was the option of the appellants to bring it here. Appellees requested that certiorari issue from this court at the cost of appellants, but, solicitor for appellants resisting, this was denied, and the cause was argued without the testimony upon which the report of the master purported to be based. After the submission of the cause to the court, appellants' solicitor produced in court the original of the report made by the examiner, but it was declined, and ordered to be returned to the custody of the clerk of the district court held in and for the county of Eddy.

That the sellers of chattels used in business as an inducement to the sale verbally promised the purchaser not to carry on the business in the same town, but did continue to carry it on notwithstanding their promise, is not, in the absence of fraud, ground for rescission of the sale, as the representations were not as to any matter in praesenti, but related only to performance of a promise in the future.

A.A. Freeman and J. O. Cameron, for appellants.

John Franklin, for appellees.

COLLIER, J. (after stating the facts).

It was a matter of some discussion upon the argument as to whose duty it was to produce here the proofs which had been taken by the special examiner; the solicitor for appellants contending that, though the report of the special master was assailed by exceptions regularly filed, and for a proper determination of those exceptions it was necessary for the chancellor to peruse said testimony, yet the case could be properly reviewed here in the absence of such proofs. This we think an untenable position, and to illustrate how it might be that two opposite conclusions, both correct, could be reached in the same case, if the contention were followed, we will suppose an exception to a finding of fact by the master, and the chancellor, discovering there was no evidence to support such finding, decrees to the contrary of the master's recommendation. Afterwards the case comes here on review without the evidence, and, if there obtains a presumption, as appellants contend, in favor of the correctness of the master's finding of fact, a reversal of the chancellor would necessarily follow. Admitting for the moment that there is such presumption, yet such a result we do not think should be deduced from the privilege afforded to appellants and plaintiffs in error by the act of 1889 entitled “An act with reference to practice in the supreme court and for other purposes.” Laws 1889. c. 1. The option granted of taking up only such part of the record as appellant or plaintiff in error deems “necessary for a review of the judgment or decree,” instead of the whole record, was intended to lighten the burden of expense, but not in any way to put the opposite party to any disadvantage, or change his position in any respect. Under the act of 1889, just as formerly, the appellant or plaintiff in error should have his case in this court, with nothing to be desired for a full and proper determination of the question of error or want of error in the lower court. Error is alleged in the lower court, and it must be affirmatively shown to procure a reversal. This cannot be done where the contention respects a matter of fact which cannot be discerned from the record in this court. If the record were here presuming the absence of nothing necessary for a determination by the lower court, it would be taken as all the record necessary to a proper review, unless the appellee or defendant in error asked for the production of something more. Also we will say that we do not think any such presumption attaches to the findings of a master, as solicitor for appellants asserts. This assertion is that, after a master's findings have been successfully assailed according to the forms of law, and decree entered setting them aside, they are presumed to be correct. This...