Pecos Valley Immigration Co. v. Cecil , 15 N.M. 45 ( 1909 )

OPINION OP THE COURT.

MILLS, C. J.

1 This case was tried by the court below sitting without a jury. The court made findings of facts, which were before us on this appeal, and according to the rule frequently enunciated by this court such findings of facts, and the judgment entered thereon, like the verdiet of a jury, will not be disturbed where there is substantial evidence to support them. Zanz v. Stover, 2 N. M. 29; Romero v. Desmarais, 5 N. M. 142; Torlina v. Torlicht, 5 N. M. 148; Newcomb v. White, 5 N. M. 435; Torlina v. Torlicht, 6 N. M. 54; Perea v. Barela, 6 N. M. 239; Lynch v. Grayson, 7 N. M. 26; Gale v. Salas, 11 N. M. 210; Romero v. Coleman, 11 N. M. 533; Rush v. Fletcher, 11 N. M. 555; Brown v. Lockhart, 12 N. M. 16.

This suit was brought to collect a brokerage or commission of five dollars per acre on the sale of two hundred and forty acres of land.

The appellee herein admits that for himself and as agent for one L. R. Sperry, he listed the land for the sale of which the brokerage or commission is claimed, for sale, early in September, A. D. 1905, foy the period of thirty days, with one Harry Hamilton, who in turn re-listed it for «ale with The Pecos Valley Immigration Go., appellant herein and that in Oetober of the same year he renewed such listing for thirty days, which second listing expired on November 9th, A. D. 1905. Appellee also testified that after November 9th A. D. 1905, he refused to list the land with any one, although requested so to do, without reserving the right to sell it himself. He also testified that when solicited to relist the property for sale and when he refused to do so, he gave appellant’s representative the description of the land, and said that if they produced the purchase price before he sold it, that appellant would be entitled to whatever commission he made over and above the net price he had set on the. property. It also appears that in January, A. D. 1906, appellee sold the land to one Ivaufinan, who first came to New Mexico in the winter of 1905 on an excursion 'run under the auspices of the appellant.

21 The evidence in this, as in nearly all contested cases, is conflicting to some extent, but there is ample testimony to sustain the finding of the learned judge who tried the case, that, “The listing of defendant’s propertv with plaintiff expired in November, 1905, and said company did not have it for sale when Kanfman came to Artesia in December, 1905.” We think that not only this,,' but that all of the facts found by the court are eminently proper, and that the weight of the evidence as disclosed by the printed transcript which is before us, sustains them.

We are particularly struck by the clear and positive evidence of the defendant Cecil, appellee herein. He does not- appear to have sought to conceal anything, but evidently has tried to detail all of the facts relevant.to the (issues in the case just as lie remembered them.

3 The court also found as a conclusion, of law, that: “The facts ■ of the case do not bring it within the decisions which hold that a sale by a party direct leaves the factor’s right to the commission intact, wdrere the .latter has furnished the customer and has.thus been the procuring' cause of the sale. Such cases presuppose and ■ assume relationship of principal and agent which the . court in t]hs ease finds did not exist.”

As the court below found that the contract allowing appellant to sell the land expired in November, 1905, and as at the time the same was made to Kaufman, in January, 1906, by the appellee, the appellant had nothing to do with the disposition of the land, this finding of the 'court is correct, and appellant is clearly not entitled to any commission on,the sale.

We have not considered it necessary to take up in detail the many exceptions urged by counsel for appellant, as we think that this opinion fairly covers the merits of the case, and as there is no error apparent in the record or in the judgment entered by the court below, the same is therefore affirmed, and, It is so ordered.