THOMPSON V. H.B. ZACHRY CO., 1966-NMSC-017,
75 N.M. 715, 410 P.2d 740 (S. Ct. 1966)
J. H. THOMPSON, Plaintiff-Appellant, and
Cross-Appellee,
vs.
H. B. ZACHRY CO., a corporation, Defendant-Appellee and
Cross-Appellant
SUPREME COURT OF NEW MEXICO
1966-NMSC-017, 75 N.M. 715, 410 P.2d 740
SHIPLEY, SELLER & WHORTON,
Alamogordo, New Mexico, W. C. WHATLEY, R. E. RIORDAN, Las Cruces, New Mexico,
Attorneys for Appellant.
KELEHER & McLEOD, T. B. KELEHER, RUSSELL
MOORE, JOHN B. TITTMANN, Albuquerque, New Mexico, Attorneys for Appellee.
NOBLE, Justice, wrote the opinion.
DAVID W. CARMODY, C.J., IRWIN S. MOISE, J.
The motion for rehearing of H. B. Zachry Co. is granted and
the original opinion filed herein withdrawn and the following substituted
therefor:
{1} Defendant, H. B. Zachry
Co., who was performing construction work on the McGregor Range, employed the
plaintiff, Thompson, to perform certain surveying work at an agreed rate of
compensation. Thompson was required to survey and stake the Hawk access road
and sites for sixteen concrete launching pads, in accordance with drawings and
specifications indicating their locations. It was discovered that Thompson had
incorrectly located the road, but such revelation was not made until after the
defendant had already done some construction work at the erroneous location.
Plaintiff resurveyed the location without charge. Subsequently, two launching
pads were also incorrectly located and the error corrected, but the defendant
was required to rebuild forms at those two launching pads as a result.
{2} Plaintiff sued for a
balance claimed to be due for work performed, and the defendant counterclaimed
for damages caused by the plaintiff's surveying errors. The plaintiff's
complaint and the defendant's counterclaim were dismissed by the trial court
and both parties independently appealed.
{3} Plaintiff asserts that
the trial court's conclusion that his complaint should be dismissed is not
supported by any substantial evidence. While the attack appears to be strictly
upon the lack of evidence to support the conclusion, implicit in such argument
is the contention that the evidence would not support a finding of fact made
the basis of the conclusion. We do not reach the question of the sufficiency of
the evidence because a review of the court's decision makes it evident that
there is no finding of fact to support the conclusion or judgment of dismissal.
Under Rule 52(B)(a)(2) (§ 21-1-1(52)(B)(a)(2) N.M.S.A. 1953), a court sitting
without a jury is required to find those ultimate facts necessary to determine
the issues, i.e., the controlling facts without which the law cannot be
correctly applied in rendering judgment. Star Realty Company v. Sellers,
73
N.M. 207,
387 P.2d 319. It is fundamental that a judgment cannot be sustained
on appeal unless the conclusion upon which it rests finds support in one or
more findings of fact. Star Realty Company v. Sellers, supra; Jontz v.
Alderete,
64 N.M. 163,
326 P.2d 95; Isaac v. Seguritan,
66 N.M. 410,
349 P.2d
126; Consolidated Placers v. Grant,
48 N.M. 340,
151 P.2d 48. Indeed, defendant
seems to concede in its brief that, even though some of the work may have been
negligently performed by the plaintiff, he is nevertheless entitled to recover
for services
{*717} rendered by him and
accepted by defendant.
{4} The plaintiff urges error
in the court's refusal to adopt his requested findings Nos. 4, 5 and 10, fixing
the dollar amount of service rendered by him and accepted by defendant for
which payment had not been made. We do not understand that either the amount of
plaintiff's services nor the fact that they were accepted by defendant is
disputed. On the contrary, the defendant concedes that "there was ample
and adequate evidence to support the specific findings requested by
appellant." He only argues that the defendant is likewise entitled to
recoup his damage resulting from plaintiff's negligent performance. It is now
firmly established that a trial court must, when requested, find one way or
another upon a material fact, and that failure to do so constitutes error.
Laumbach v. Laumbach,
58 N.M. 248,
270 P.2d 385.
{5} The defendant sought
recoupment for damage resulting from the erroneous location of the road and
launching pads. Although the court made findings that defendant performed work
at such erroneous locations, a requested finding of the amount of damage
occasioned thereby was refused. For the same reasons that required a finding as
to the amount of plaintiff's services, we think the court must find one way or
another on the question of defendant's damages. We find no basis in the
findings of fact made by the court for dismissal of the counterclaim.
{6} The case will be reversed
and remanded with instructions to vacate the judgment, reinstate the case on
the docket and proceed in a manner not inconsistent with this opinion.
DAVID W. CARMODY, C.J., IRWIN S. MOISE, J.