Springer Ditch Co. v. Wright , 31 N.M. 457 ( 1925 )

Defendant urgently insists that we have erred in our treatment of his assignments relating to the second crop of hay. He states two points: First, that damages therefor were too remote, contingent and speculative; and, second, that, as evidence was received as to the damage to the freehold, the loss of future crops was included therein, and that double damages thus resulted.

[10] As to the first of these points, we see no occasion to modify what we said before. To it may be added the fact that no objection whatever was interposed to the reception of this evidence. In the former opinion, we discussed defendant's claim that double damages resulted because of the reception of evidence, both as to the cost of reconstructing permanent improvements, and as to the difference in the value of land before and after the flood. That is also applicable to defendant's second point above stated. It is also noted that the witnesses who testified as to the injury to the freehold were asked by plaintiffs' counsel to eliminate from their estimates any depreciation on account of the loss of that year's hay crop.

If double damages have resulted in this cause through error in computation, or because of including the value of the second crop of hay, or the cost of reconstructing permanent improvements, in the amount allowed for injury to the freehold, the fact can be established only by inferences to be drawn from a review of the whole record. While we have read the record with care, and have re-read it since the filing of the motion for rehearing, our system of review does not entitle defendant to a trial de novo. It is for it affirmatively to show error occurring at the trial. The presumptions are in favor of the correctness of the judgment. In the absence of specific findings as to the several items of damage, which defendant failed to request, and restricted as we are here by the well-settled principles governing review of causes in this court, we cannot disturb the judgment on the grounds above urged.

[11] Defendant also contends that we erred in sustaining the trial court in refusing to consider, as an admission, the letter of plaintiff Douglas Wright to the defendant regarding the amount of his damages. Counsel now take the position, as we understand them, that this writing was to be judged — either as an admission or as an offer — from its contents alone, and, possibly, from what was said when it was delivered. They contend that extrinsic circumstances, having a bearing upon the intent of the writer, cannot be shown. We cannot properly consider that question. The court ruled that he must hear evidence of such extrinsic circumstances. Counsel apparently have acquiesced in that ruling until now. The only complaint heretofore made is that finding 14 was not supported by the evidence. Counsel seek now to advance a new theory of the law. It is too late. Garcia v. Silva, 26 N.M. 421, 193 P. 498.

Defendant contends that, even if the character of the writing — as admission or offer — could be shown by such circumstances, the burden of proof rested upon plaintiffs to overcome its prima facie character as an admission. By finding 14 the court, in effect, held that plaintiffs had sustained that burden, and we have pointed out the substantial evidence supporting the finding.

Unable to sustain any of defendant's contentions, the motion for rehearing is overruled, in view of which a motion filed by plaintiffs to strike the motion for rehearing becomes of no importance.

PARKER, C.J., and BICKLEY, J., concur.