First Western Savings & Loan Ass'n v. Home Savings & Loan Ass'n

OPINION HENDLEY, Judge. Plaintiff recovered judgment against defendant in a breach of contract and negligence action. Defendant’s appeal relates to: (1) statute of limitations; (2) breach of contract; (3) substantial evidence; (4) damages, and (5) subject matter of the contract. Plaintiff’s cross-appeal relates to the failure of the trial court to give plaintiff prejudgment interest. Defendant’s first point is dispositive of the appeal. We reverse. Defendant claims that plaintiff’s action was barred by the six-year limitation in § 23-1-3, N.M.S.A.1953 (Repl.Vol. 4). The predecessors of plaintiff and defend-' ant entered into a loan servicing agreement whereby defendant was to service certain loans owned by plaintiff on properties in Albuquerque. Among the loans to be serviced was the Sanchez real estate contract. At the time of the loan servicing agreement on January 20, 1960 the indebtedness due on the Sanchez loan to plaintiff was $2,979.24. The loan servicing agreement required defendant to use its “best efforts to effect prompt collection.” On March 16, 1961, defendant informed plaintiff that it was going to foreclose on the Sanchez contract and requested of plaintiff the necessary papers. Plaintiff sent the papers to defendant on March 18, 1961. In responding to plaintiff’s status request on the contract, defendant replied on December 28, 1962, that payment had been made by Sanchez in the amount of $40.00, May 1, 1962. Although not material to this appeal the payment was actually made May 1, 1960. Prior to December, 1964 defendant had been servicing over 100 loans including the Sanchez contract. During December, 1964 defendant purchased all of the loans except for the Sanchez contract and four others. In August, 1967 plaintiff inquired as to the status of the five outstanding uncollected loans. Defendant replied on September 5, 1967 enclosing a check for two of the loans and stated that they were checking into their files regarding the other three loans (one being the Sanchez contract). On September 11, 1967 defendant replied to plaintiff stating it could not find any papers on the Sanchez contract and the other two loans and requested Xerox copies of the Sanchez papers. The copies were sent to defendant on September 18, 1967. Plaintiff again wrote defendant on November 3, 1967 stating it had not heard from defendant since sending the copies. On February 23, 1968 defendant responded and stated that, in regard to the Sanchez loan, defendant’s file “did not include any documents.” On April 1, 1968 plaintiff demanded of defendant the principal and interest due on the Sanchez contract. On April 5, 1968 defendant denied responsibility and this action was filed November 7, 1968. Trial was held on March 18, 1971 which resulted in a judgment in favor of plaintiff plus interest from the date of judgment. The trial court made findings of fact Nos. 8, 9, 10 and 11, and conclusion of law No. 1 which state: “8. That the defendant Home Savings and Loan and now Sandia Savings and Loan did not collect this indebtedness pursuant to their agreement with the plaintiff. “9. By reason of Defendant’s breach of the agreement Plaintiff was damaged. “10. And [sic] Agreement that the plaintiff knew that this document and agreement was not being enforced; they knew that the payments were not being collected and they knew this for a period of approximately six and one-half or seven years, and during that period of time they did nothing to enforce the agreement or see that the agreement was carried out or fulfilled. “11. That the plaintiff did have a duty to mitigate their damages and that they failed to take proper steps during this period of time to do so. “1. Sandia Savings and Loan Association is liable for damages to First Western Savings and Loan Association for breach of the contract between First Western Savings and Loan Association and Home Savings and Loan Association dated January 20, 1960.” Defendant contends that, in view of the court’s findings, it should have adopted defendant’s requested conclusions of law that the claim was barred by § 23-1-3, supra. As stated in Goldie v. Yaker, 78 N.M. 485, 432 P.2d 841 (1967): “Under §21-1-1(52) (B) (a) (2), N.M. S.A. 1953, the trial court must find such ultimate facts as are necessary to determine the issues. ‘Ultimate facts’ means the essential and determinative facts on which the conclusion is reached. A judgment cannot be sustained on appeal unless the conclusion upon which it is based finds support in the findings of fact * * There are stipulated facts that plaintiff received status reports on the Sanchez loan from defendant continuously from January, 1960 through February, 1971. Defendant requested all papers necessary to foreclose the Sanchez loan on March 16, 1961. Plaintiff’s reply letter dated March 18, 1961 enclosed the necessary papers for the foreclosure. No foreclosure action had been taken on the Sanchez loan throughout the period plaintiff was receiving the monthly status reports, nor when this suit was initiated on November 7, 1968. Plaintiff had actual notice that defendant had not proceeded with their foreclosure action beginning with the first monthly loan status report following the March 18, 1961 reply letter by plaintiff. There is evidence to support the trial court’s finding No. 10. On appeal the evidence is viewed in the light of the presumptive correctness of a trial court’s judgment. However this, presumption does not “ * * * replace the requirement that the judgment must be supported by findings, which in turn must be supported by substantial evidence.” Payne v. Tuozzoli, 80 N.M. 214, 453 P.2d 384 (Ct.App.1969). Here, we have a supported finding which is contrary to a conclusion that the action accrued within the statutory six-years. Plaintiff made no objection to this finding and he cannot now complain. Trinidad Industrial Bank v. Romero, 81 N.M. 291, 466 P.2d 568 (1970). The finding supports a conclusion, as submitted and pleaded by defendant, that the action was barred by the statute of limitations. From the foregoing it must necessarily follow that the trial court erred in its conclusion No. 1. Ed Black’s Chevrolet Center, Inc. v. Melichar, 81 N.M. 602, 471 P.2d 172 (1970). Our reversal of the judgment for plaintiff necessarily carries with it a determination that plaintiff’s cross-appeal has no merit. Reversed and remanded with directions to set aside the judgment and enter an order of dismissal. It is so ordered. COWAN, J., concurs. SUTIN, J. (dissenting).