{
  "id": 2805787,
  "name": "Robert G. UNDERWOOD and Dorothy G. Underwood, his wife, Plaintiffs-Appellees, v. MARBERRY CONSTRUCTION COMPANY, a corporation, Defendant-Appellant",
  "name_abbreviation": "Underwood v. Marberry Construction Co.",
  "decision_date": "1964-11-30",
  "docket_number": "No. 7521",
  "first_page": "664",
  "last_page": "665",
  "citations": [
    {
      "type": "official",
      "cite": "74 N.M. 664"
    },
    {
      "type": "parallel",
      "cite": "397 P.2d 311"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
    {
      "cite": "73 N.M. 19",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5321768
      ],
      "weight": 4,
      "opinion_index": 0,
      "case_paths": [
        "/nm/73/0019-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:26a9cc3744041dfa",
    "word_count": 554
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  "last_updated": "2023-07-14T17:26:44.283414+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "CARMODY and CHAVEZ, JJ., concur."
    ],
    "parties": [
      "Robert G. UNDERWOOD and Dorothy G. Underwood, his wife, Plaintiffs-Appellees, v. MARBERRY CONSTRUCTION COMPANY, a corporation, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MOISE, Justice.\nDefendant has perfected this appeal from a judgment for $1,918.70, plus costs, entered in favor of plaintiffs after a nonjury trial on the merits.\nThe facts found by the trial court establish that plaintiffs purchased a lot with a newly constructed house thereon from defendant ; that defendant had built the house on \u201cloose filled soil\u201d which fact it should have known; that because the house was built on \u201cloose filled soil,\u201d which constituted a latent defect, certain specified imperfections, cracks, and other deficiencies developed; and that plaintiff gave defendant timely notice of these defects in compliance with an express warranty required by the Veterans\u2019 Administration which had been delivered to plaintiffs by defendant. Evidence showed that the Veterans\u2019 Administration\u2019s regulations in effect at that time prohibited the construction of such a house on loose filled soil.\nThe similarity between the facts of this case and those considered in Jackson v. Goad, 73 N.M. 19, 385 P.2d 279, is striking.\nHere, the damage resulted from building on loose, improperly compacted soil rather than, as in Jackson, the nature of the soil itself. In both cases, the builder attempted repairs until further efforts tendered were refused by the purchaser. Further similarity is found in the fact that the builder defendants in both cases claimed that the trouble resulted from excessive irrigating and use of water, or from changes made in the surface coutour by the plaintiffs\u2019 and that this constituted negligence on their part.\nThe two cases are not distinguishable although the pleadings and theories advanced by counsel, as well as the points raised on appeal differ somewhat. In the instant case, the court found a breach of warranty, whereas in Jackson v. Goad, supra, no such claim was advanced. We affirm the ruling of the trial court that the defects \u25a0constituted a breach of warranty, and that plaintiff properly complied with the notice requirements of the warranty.\nAppellants in both cases claim a lack of substantial evidence to support one or more findings. Although the facts found and asserted to be without support differ in the two cases, what was said in Jackson v. \u2018Goad, supra, on this subject applies here. Appellant\u2019s point is without merit. We pass without comment any question present as to whether defendant has properly attacked any material finding.\nIn addition to the warranty held to have been breached by defendant, appellants \u25a0complain that the trial court erred in con\u25a0cluding that another document designated as a \u201cField Review,\u201d which was prepared by a representative of the Veterans\u2019 Ad\u2022ministration after an inspection of the prop\u2022erty, and signed by plaintiffs and an agent of defendant, was a valid and binding contract which was breached by defendant.\nIn view of our determination that the trial court\u2019s finding of a breach of warranty is supported by substantial evidence, any additional basis upon which defendant might be liable would be merely cumulative. We accordingly do not consider whether the trial court ruled correctly in this regard.\nThe judgment appealed from should be affirmed.\nIt is so ordered.\nCARMODY and CHAVEZ, JJ., concur.",
        "type": "majority",
        "author": "MOISE, Justice."
      }
    ],
    "attorneys": [
      "Wilson, Ahern & Montgomery, Albuquerque, for appellant.",
      "Tonkin, Cotter & Hend\u00edey, Albuquerque, for appellees."
    ],
    "corrections": "",
    "head_matter": "397 P.2d 311\nRobert G. UNDERWOOD and Dorothy G. Underwood, his wife, Plaintiffs-Appellees, v. MARBERRY CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.\nNo. 7521.\nSupreme Court of New Mexico.\nNov. 30, 1964.\nWilson, Ahern & Montgomery, Albuquerque, for appellant.\nTonkin, Cotter & Hend\u00edey, Albuquerque, for appellees."
  },
  "file_name": "0664-01",
  "first_page_order": 716,
  "last_page_order": 717
}