STUEBER V. PICKARD, 1991-NMSC-082, 112
N.M. 489, 816 P.2d 1111 (S. Ct. 1991)
ROBERT F. STUEBER and JAMES M. STUEBER,
Plaintiffs-Appellees,
vs.
H. GRIFFIN PICKARD, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1991-NMSC-082, 112 N.M. 489, 816 P.2d 1111
August 28, 1991, Filed. As
Amended
Appeal from the District Court of
Bernalillo County; Susan Conway, District Judge.
Calvin Hyer, Jr., Albuquerque, New
Mexico, for Appellant.
Kim E. Kaufman, Albuquerque, New Mexico,
William F. Aldridge, Albuquerque, New Mexico, for Appellees.
Dan Sosa, Jr., Chief Justice. Richard E.
Ransom, Justice, Joseph F. Baca, Justice, concur.
{1} H. Griffin Pickard, Jr.
(Pickard) appeals judgment in favor of Robert and James Stueber (the Stuebers).
The Stuebers are brothers who inherited a house from their parents. They sold
the house for approximately $55,000 to a corporation that was never registered
with the Corporation Commission, Pickard Builders, Inc. (the corporation). They
dealt with H. Griffin Pickard in negotiating the sale. By two promissory notes,
the corporation was to pay the Stuebers $680 per month from its interest in a
mortgage it held on another house. It was agreed that the other house was
collateral for the loan obligation, but, apparently, as we explain more fully
below, the Stuebers' lien interest was never recorded. Payments were made for
two years until the collateral house was sold.
{2} The Stuebers believed
that the corporation recorded their security interest in the collateral house,
but evidently this was not done. We say "evidently" because no one
knows on appeal and the record does not reflect whether the Stuebers actually
held a recorded mortgage interest in the collateral house. As the case progressed,
however, the issue came to be not what actually happened with respect to the
Stuebers' secured interest in the collateral house, but what the Stuebers
believed happened. The Stuebers believed that Pickard defrauded them by selling
the collateral house in such a way as to destroy what they believed was their
recorded interest. From the record it appears that in fact there never had been
a mortgage recorded on the collateral house showing the Stuebers as lien
holders of record with a secured interest in the house.
{3} Nevertheless, the
Stuebers threatened to sue Pickard for fraud if he did not make good on the
obligation to pay the notes. The Stuebers and Pickard met several times and
negotiated a settlement. In December, 1983, several documents were prepared by
the Stuebers' attorney: (1) an assignment and bill of sale from Pickard to the
Stuebers of a percentage interest which Pickard owned in a real estate joint
venture; (2) a warranty of title specifying that Pickard in fact was possessed
of this interest; 3) a repurchase agreement in which it was agreed that the
Stuebers would receive all distributions attributable to Pickard's interest in
the joint venture until January 1, 1989, at which time Pickard would buy back
his interest for $55,000 less any distributions the Pickards had received; (4)
a consent to Pickard's transfer and waiver signed by his co-joint venturers;
and (5) a release of liability signed by the Stuebers in which they excepted
Pickard's obligation under the repurchase agreement.
{4} Documents 1 and 4 were
executed in December, 1983. Documents 2, 3 and 5 were not executed until May,
1984, owing to Pickard's difficulty in getting all the joint venturers to sign
document 4. The Stuebers never received any distribution from the joint venture,
and Pickard never made any payment to them under the repurchase agreement. The
Stuebers sued to collect under the repurchase agreement and were awarded
judgment against Pickard.
{5} On appeal, Pickard
alleges that the Stuebers' supposed claim of fraud was invalid,
{*491} as there never had been any mortgage
recorded for him to tamper with, and thus their forbearance from suing amounted
to a lack of consideration necessary to support the assignment and bill of
sale. Further, he alleges that the repurchase agreement was a second and
separate contract unsupported by consideration. He also contends that because
the joint venture was an interest in real estate, the lack of his wife's signature
on the assignment and bill of sale prevented the passing of a community
property interest in real property to the Stuebers.
{6} We reject Pickard's
contentions, along with other minor contentions he raises, and affirm the
judgment in its entirety. We remand the case to the trial court to set attorney
fees for the Stuebers' prosecution of this appeal. Appellate attorney fees will
be in addition to the attorney fees already awarded by the trial court.
{7} First, there is
substantial support in the record to support the trial court's finding that the
Stuebers' forbearance to sue constituted the consideration for the assignment
and bill of sale.
See 1. W. Jaeger,
Williston on Contracts 135B
at 581 (3rd ed. 1957) ("forbearance from suit on a claim of doubtful
validity is sufficient consideration for a promise if there is a sincere belief
in the validity of the claim"); 1. A. Corbin,
Corbin on Contracts
139 (1963) (reasonable basis for belief); J. Calamari and J. Perillo,
The
Law of Contracts 4-8 (1987) (same).
{8} While the trial court did
not explicitly find that the Stuebers' forbearance was based on a good faith
belief in the validity of their claim, the court did find that their testimony
was "extremely credible" and that Pickard's was "extremely
incredible." And since the Stuebers' testimony was to the effect that they
believed they were entitled to sue Pickard for fraud, it follows that their
belief was held in good faith.
{9} Second, the repurchase
agreement was not a separate contract. It was a separate document that was part
of the same agreement underlying the assignment and bill of sale and prepared
and executed as part of that agreement, and thus was supported by the same
consideration--namely, the Stuebers' forbearance from suit.
See, e.g.,
Master
Builders, Inc. v. Cabbell, 95 N.M. 371,
622 P.2d 276 (Ct. App.)(issue of
whether two documents constitute one contract is determined by considering
parties' intent and surrounding circumstances),
cert. denied, 95 N.M.
426,
622 P.2d 1046 (1981). At any rate, Pickard does not challenge the court's
finding that the two documents were part of the same transaction. Thus, the
court's finding on this issue is binding on appeal.
Cordova v. Broadbent,
107 N.M. 215,
755 P.2d 59 (1988).
{10} Third, the trial court
was right to find that Mrs. Pickard's signature was not needed to transfer
Pickard's interest in the joint venture. Such transfer was not a transfer of an
interest in community-held real property.
See NMSA 1978, 40-3-13 (Repl.
Pamp.1989) (both spouses must join in conveyance of community real property);
cf.
Execu-Systems, Inc. v. Corlis, 95 N.M. 145,
619 P.2d 821 (1980)
(real estate listing agreement not a conveyance). In the last analysis, this
case is a suit on a promise to pay money by an individual, Pickard, that was
breached by that individual. It has nothing to do with the conveyance of real
property.
{11} Summary judgment is
affirmed and the case is remanded with instructions for the trial court to set
attorney fees for the Stuebers' prosecution of this appeal. Appellate attorney
fees shall be in addition to attorney fees already set by the court.