{
  "id": 5335523,
  "name": "John E. HOCKETT and Mary Belle Hockett, his wife, Plaintiffs-Appellees, v. John O. WINKS and Lucille C. Winks, his wife, Defendants-Appellants",
  "name_abbreviation": "Hockett v. Winks",
  "decision_date": "1971-05-10",
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  "casebody": {
    "judges": [
      "TACKETT and McMANUS, JJ., concur."
    ],
    "parties": [
      "John E. HOCKETT and Mary Belle Hockett, his wife, Plaintiffs-Appellees, v. John O. WINKS and Lucille C. Winks, his wife, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "OPINION\nOMAN, Justice.\nThis is a suit filed in Rio Arriba County, New Mexico, to recover damages arising out of an agreement for the sale and purchase of property. Defendants were the sellers, and plaintiffs the purchasers. Following a trial to the court without a jury, a judgment was entered against defendants. Defendants appeal. We reverse.\nThe first issue to be resolved is that of the theory upon which plaintiffs pleaded and tried their case in the court below. Defendants take the position this is a suit for claimed fraud and deceit, and, consequently, plaintiffs had the burden of establishing each essential element of the tort by clear and convincing evidence. McLean v. Paddock, 78 N.M. 234, 430 P.2d 392 (1967); Visic v. Paddock, 72 N.M. 207, 382 P.2d 694 (1963); Sauter v. St. Michael\u2019s College, 70 N.M. 380, 374 P.2d 134 (1962).\nPlaintiffs, on the other hand, urge they are entitled to rely upon the principle announced in Ham v. Hart, 58 N.M. 550, 273 P.2d 748 (1954), which principle plaintiffs assert \u201cis a different cause of action from\u201d the tort of fraud and deceit. We agree the principle announced in Ham v. Hart, supra, is not consistent with the tort of deceit upon which plaintiff relied in Sauter v. St. Michael\u2019s College, supra, but we do not agree plaintiffs are entitled to rely upon the principle announced in Ham v. Hart, supra.\nIt is apparent to us from the record that plaintiffs did proceed in deceit, and the trial court so treated the case. A few of the matters in the record which lead us to this conclusion are: (1) in their complaint plaintiffs alleged and relied upon claimed false and fraudulent representations and fraudulent concealment of certain defects; (2) in a \u201cMemorandum in Response to Order for Pretrial Conference,\u201d plaintiffs stated that defendants made false and fraudulent representations and concealed known latent defects, and stated the legal issue on the question of liability was \u201c[wjhether * * * the fraud of the defendants caused plaintiffs\u2019 damages\u201d; (3) in their requested findings of fact, plaintiffs requested the trial court to find, and the trial court did find, that certain representations made by defendants were false, were known by defendants to be false, were made by defendants with intent to deceive plaintiffs, and plaintiffs relied upon same to their damage; (4) in their requested conclusions of law, plaintiffs requested, and the court concluded accordingly, that defendants committed a tortious act in fraudulently inducing plaintiffs to enter into the contract in question; and (5) the trial court concluded, without question or objection from plaintiffs, that the fraudulent acts had \u201cbeen established by clear and convincing evidence.\u201d\nPlaintiffs rely upon the following language in Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 (Ct.App.1968): \u201cEven though the trial court may have erred in applying the actionable fraud rule of the Sauter case in some of the findings and conclusions, the result reached was not altered thereby, * * This is not the case now before us. The trial court in this case did not confuse the rules, but made findings and conclusions consistent with the actionable deceit rule of the Sauter case, which was the rule under which plaintiffs here pleaded and tried their case. They may not propei'ly change the theory of their case on appeal. Pfleiderer v. City of Albuquerque, 75 N.M. 154, 402 P.2d 44 (1965); Board of Education, etc. v. State Board of Education, 79 N.M. 332, 443 P.2d 502 (Ct.App.1968).\nHowever, insofar as the opinion in Ham v. Hart, supra, held that the principle of equity applicable to the rescission of contracts is applicable in the tort- of deceit (or fraud and deceit as it is sometimes called), undertook to modify the essential elements of the tort of deceit, or sought to create a new tort predicated upon the stated principle of equity, we disavow and hereby overrule that opinion.\nThe question next presented on this appeal is simply whether the evidence was sufficient to establish clearly and convincingly each essential element of the tort of deceit. A review of the record convinces us that some of the trial court\u2019s findings are not supported by substantial evidence [see for a definition of substantial evidence, McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968)], and none of the essential findings are supported by clear and convincing evidence. Evidence is clear and convincing in support of the essential elements of deceit only if it instantly tilts the scales in the affirmative on each element, when weighed against the evidence in opposition, and the fact finder\u2019s mind is left with an abiding conviction that the charges as to each element are true. Lumpkins v. McPhee, 59 N.M. 442, 286 P.2d 299 (1955).\nThe judgment should be reversed with directions to the trial court to enter judgment in favor of defendants and dismiss plaintiffs\u2019 complaint with prejudice.\nIt is so ordered.\nTACKETT and McMANUS, JJ., concur.",
        "type": "majority",
        "author": "OMAN, Justice."
      }
    ],
    "attorneys": [
      "Olmsted & Cohen, Santa Fe, for appellants.",
      "Jones, Gallegos, Snead & Wertheim, Santa Fe, for appellees."
    ],
    "corrections": "",
    "head_matter": "485 P.2d 353\nJohn E. HOCKETT and Mary Belle Hockett, his wife, Plaintiffs-Appellees, v. John O. WINKS and Lucille C. Winks, his wife, Defendants-Appellants.\nNo. 9094.\nSupreme Court of New Mexico.\nMay 10, 1971.\nRehearing Denied June 1, 1971.\nOlmsted & Cohen, Santa Fe, for appellants.\nJones, Gallegos, Snead & Wertheim, Santa Fe, for appellees."
  },
  "file_name": "0597-01",
  "first_page_order": 653,
  "last_page_order": 655
}