SILCOX V. MCLEAN, 1932-NMSC-030, 36 N.M.
196, 11 P.2d 540 (S. Ct. 1932)
SUPREME COURT OF NEW MEXICO
1932-NMSC-030, 36 N.M. 196, 11 P.2d 540
Appeal from District Court, Curry
County; Numa C. Frenger, Judge.
Rehearing Denied June 4, 1932.
Suit by C. H. Silcox against George F.
McLean. Judgment in favor of the plaintiff, and the defendant appeals.
1. Where a trial amendment is improperly allowed, it is the
duty of the complaining party to object and, if the ruling is against him, to
stand thereon and appeal; and, though the amendment introduces a new cause of
action, a party pleading to such amendment and going to trial thereon waives
the objection.
2. Where a defendant consents that the judgment of the court
may award the relief of specific performance of a contract or payment of
damages for the breach of such contract, he cannot complain here that the
judgment improperly awarded alternative relief.
3. An executory contract, which involves title to or an
interest in real estate, may be rescinded by a subsequent parol agreement of
the contracting parties.
R. E. Rowells and Hatch & Patton, all
of Clovis, for appellant.
Hockenhull & Mayes, of Clovis, for
appellee.
Bickley, C. J. Sadler and Hudspeth, JJ.,
concur. Watson and Parker, JJ., did not participate.
{*197} {1} Appellee (plaintiff) contracted in writing to
sell, and appellant (defendant) agreed to buy, a parcel of land. The plaintiff,
charging that he had performed the contract on his part and that defendant had
failed therein, sued for specific performance.
{2} Defendant answered,
denying that plaintiff had performed his part of the agreement and
affirmatively alleged that the contract had been rescinded.
{3} Appellant claims that his
original answer sets up a parol agreement and also an agreement "in
writing" for rescission. Plaintiff in his reply denied all averments of
the answer by way of affirmative defense.
{4} A hearing was had upon
the issues thus made, and after both parties had rested, plaintiff presented a
motion to strike out all evidence of the defendant relative to the alleged
option to abandon the contract sued on and to exclude two checks offered by the
defendant as the written memoranda of said option, which motion was sustained
by the court; thereupon plaintiff moved for a judgment and decree based upon
the evidence of both parties, which had not been excluded, and thereupon the
court stated that the plaintiff was entitled to some relief, but was in doubt
whether it could render a decree against the defendant vendee in the contract
sued on that could be enforced and that the court was of the opinion that the
plaintiff was entitled to a decree if it could be effective, but that it seemed
to the court to be a vain and useless thing to render a decree of specific
performance; thereupon the plaintiff asked leave to amend his complaint by
inserting another count or paragraph therein by interlineation alleging damages
in the alternative for the breach of the contract by defendant, and praying for
alternative relief either for damages for the breach or for specific
performance, which was granted and plaintiff then inserted the amendment and
the case was adjourned to a future date for
{*198}
trial on the question of damages. Upon the second hearing after the court
had heard additional evidence offered by both parties, the court found the
facts for the plaintiff and announced that judgment would be rendered for
plaintiff in the sum designated as damages, thereupon the court instructed
plaintiff's attorney to prepare the judgment accordingly. Whereupon counsel for
defendant in open court requested the court to render the judgment in the
alternative, that is, give the defendant the option to either perform the
contract or pay the damages assessed. Upon such request of the defendant's
counsel, the court instructed plaintiff's attorney to prepare the judgment and
decree in conformity of such request. So the decree was rendered in accordance
with the request of defendant's counsel so far as its form is concerned, the
defendant, however, objecting generally and being allowed therein the following
exception: "To all of which findings and decree and judgment above,
defendant duly excepts."
{5} Appellant urges as ground
for reversal that the court erred in permitting the amendment heretofore
referred to. Unfortunately for him, the error, if error it was, was waived when
he subsequently answered the amended complaint instead of standing upon his
proposition that the amendment interposed a new and distinct cause of action
which changed substantially the claim of the plaintiff, contrary to the
inhibitions of section 105-605, 1929 Comp. See Security Trust & Savings
Bank v. Ravel,
24 N.M. 221,
173 P. 545.
{6} Appellant next complains
that the judgment is bad for indefiniteness and because in the alternative. No
appropriate exceptions or objections were made to the form of the judgment, so
far as the record discloses, and defendant cannot complain that the court, at
his request, gave him the option to perform the contract or to pay damages. See
Mealey v. Finnegan, 46 Minn. 507, 49 N.W. 207.
{7} When plaintiff was
allowed to amend his complaint, introducing a new cause of action, defendant
was granted time "to plead to the amendment." Defendant apparently,
and we think properly, treating the amendment together with other allegations
of the complaint as constituting a new and distinct cause of action, in due
time filed his amended answer. Thereupon, plaintiff moved to strike all of said
amended answer which was not responsive to the amendment alone. The plaintiff
complained particularly of the effort of the defendant to change the
allegations of his first answer by way of new matter to the effect that upon a
consideration which had been paid by defendant to plaintiff, it had been agreed
that said defendant was given the option to perform or abandon the real estate
contract and that he had exercised the election to abandon. In his first
answer, defendant alleged that his right of election to abandon the contract
was based upon an agreement "in writing," without filing with the
answer the original or a copy of any written agreement, whereas by his amended
answer, defendant based his right to elect to abandon the contract upon an
{*199} agreement "partly in writing and
partly in parol" and attaching "a copy of that part of said contract
which is in writing." This writing consisted of two checks executed by
defendant in favor of plaintiff for $ 99.50 and containing, on the face
thereof, the language, "For to cancel Contract on Sec. 3 -- 5 -- 35 with
option to take or leave land," and indorsed on back thereof: "No. 1,
50.00, No. 2, 450.00, No. 3, 500.00, No. 4, 25.00, No. 5, 99.50, $ 1124.50. C.
H. Silcox." And a check of defendant in favor of plaintiff for $ 25 with
the language on the face thereof "for option to take or reject deal on 3
-- 5 -- 35," and indorsed on the back thereof, "Chas. Silcox."
{8} On the original hearing
when under the pleadings the sole issue was plaintiff's right to specific
performance, these two checks were offered in evidence by defendant accompanied
by statements from the witness stand that they were given "for the
cancellation of the contract on sec. 3 -- 5 -- 35 with an option to take or
leave the land."
{9} Counsel for plaintiff
stated that there was no objection to the proffered evidence being introduced as
showing payments on the purchase price of the land, but objected to the
admission for any other purpose for the reason: "That the defendant has
set up in his answer that a subsequent written contract was entered into
between plaintiff and defendant whereby defendant had the option to proceed
with the contract originally entered into, or to declare it rescinded or
terminated at his will. No copy of the alleged written contract was annexed to
the pleadings or filed with the clerk nor served upon this plaintiff, as
required by the Code of Procedure of this state, and that the defendant,
therefore, is not entitled to introduce any alleged written contract in
evidence. For the further reason that the alleged contract written thereon or
purported to be written thereon was written on there after the check had been
paid." The court overruled the objection, and the writings were admitted
in evidence.
{10} After the parties had
rested at the first hearing, the plaintiff moved to strike the testimony of the
witness McLean (defendant) with reference to any alleged contract of release
from the real estate contract between him and defendant, and all testimony with
reference to his alleged contract of release from the real estate contract
between him and defendant, and all testimony with reference to his alleged
agency for some woman in Chicago and to exclude Defendant's Exhibits D and E,
being the two checks, one for $ 25 and the other for $ 99.50, on which
defendant based his alleged averment of a written contract, for the reason:
"That the originals nor any copy thereof was filed with the answer nor
filed in the clerk's office, nor any copies served on the plaintiff, as
required by the Code of Civil Procedure." The court sustained the motion
to strike the testimony.
{11} At the second hearing
after the court had allowed the plaintiff to amend his complaint so as to set
up a cause of action for damages for breach of the contract, to purchase the
land, and the defendant's amended answer had been filed, the defendant again
offered the two checks under consideration and was proceeding
{*200} to interrogate the defendant as to the
purpose of giving the checks and defendant was proceeding to testify, when
counsel for plaintiff objected as follows: "I object to any testimony about
an option; the court had excluded it and it is not an issue at this time."
{12} It seems appropriate to
consider appellant's fourth and fifth points together. They are: "The
court erred in striking part of defendant's amended answer." And:
"The court erred in striking testimony of defendant concerning
modification and abandonment of contract sued on by plaintiff."
{13} We view the amendment
allowed plaintiff as introducing a new and distinct cause of action. See Dobler
v. Smith, 147 Okla. 20, 294 P. 1089.
{14} So far as the issue of
specific performance was concerned, what had transpired at the first hearing,
had probably closed the case on that issue. But when a new cause of action was
introduced, defendant had a right to answer fully without being charged with a
departure from his theory of defense to the alleged cause of action for
specific performance. In fact, the theory of defense to each cause of action
was the same, that is, that for a consideration plaintiff had agreed to waive
performance by defendant, at his election. If the agreement were established,
and the election to treat the contract as canceled were exercised by defendant
in accordance therewith, there could be no decree for specific performance, and
likewise there could be no judgment against defendant for damages for alleged
breach of the contract to purchase the real estate. Defendant, if bound by his
first answer so far as the issue of specific performance originally submitted
is concerned, nevertheless had a right to interpose, in his answer to the new
cause of action set up by the complaint as amended, any defense he was entitled
to urge thereto. As to the cause of action for specific performance, assuming
that he alleged that the option to cancel was based on a written agreement, in
his answer to the cause of action for damages for breach of the contract he
answered that the option to cancel the contract was "partly in writing and
partly in parol." Defendant is not to be charged with pleading
inconsistent defenses so much as with inconsistent manner of making proof of
such defenses. Appellant here concedes that the amended answer pleaded a
rescission of the written contract by subsequent parol agreement.
{15} If defendant had moved
to amend his original answer before the amendment was made by plaintiff to his
original complaint, setting up a new cause of action, by setting up a reliance
upon a parol agreement instead of an agreement in writing and the court had
denied the motion, we probably would not disturb the ruling. Such a proposed
change by defendant might be deemed to change substantially the defense and
thus be objectionable. But when plaintiff secured an amendment to his complaint
by setting up an entirely new and distinct cause of action, which the court
would have no power to permit, but defendant waiving the objection answered the
new cause of action, we do not think he was bound by the theory of defensive
matter stated in
{*201} his original
answer to the cause of action stated in the original complaint.
{16} The ruling of the court
in striking the testimony of the defendant relative to the alleged option to
cancel the real estate contract seemed to proceed upon plaintiff's view here
urged that a contract in writing involving title or interest in real estate may
be rescinded only in writing.
{17} Appellee cites what he
deems persuasive precedents in support of his view, and among them Hoard v.
Jones, 119 Kan. 138, 237 P. 888, and quotes as follows: "A modification of
a contract is in effect the making of a new contract, and, if the original
contract to be enforceable by action must be in writing under the statute of
frauds, a modification of the contract to be enforceable by action must be in
writing." He overlooks, however, the fact that the court proceeded to say:
"The statute of frauds deals with the making of contracts rather than with
their revocation; hence, though a contract is one which, by the statute of
frauds, must be in writing to support an action, it may be revoked by
parol."
{18} With the principle last
stated, this court has announced its accord in Epstein v. Waas,
28 N.M. 608,
216 P. 506, where it was decided: "An executory contract, which involves
title to or an interest in real estate, may be rescinded by a subsequent parol
agreement of the contracting parties."
{19} It is our opinion that
the court erred in sustaining the motion to strike portions of the amended
answer and in refusing to consider the proffered testimony relative to the
alleged cancellation of the contract.
{20} It is our opinion from
the record in this case that there is no reversible error on account of denial
of jury trial.
{21} Appellant asserting
right to jury trial on the issue of damages for breach of contract relies
principally on Sternberger v. McGovern, 56 N.Y. 12. In that case the court said
of plaintiff's demand: "True, he demands equitable relief based upon the
ground that he was entitled to a specific performance. * * * He failed in
showing a right to this." In an action for specific performance, where the
relief cannot be granted, the court, instead of assessing the damages for
defendant's alleged failure to offer a good title, should set the case for
trial on the legal issues to a jury. In the case at bar appellant, having
acquiesced in the view that the court had equitable jurisdiction on the case
presented, is not in a position to avail himself of error, if any, in denying a
trial by jury.
{22} It follows from the
foregoing that the judgment should be reversed and the cause remanded for new
trial, and it is so ordered.