{ "id": 5333476, "name": "Roger PATTISON, dba Yerba Feed Pens, Plaintiff-Appellant, v. A. T. FORD and Roosevelt County Electric Cooperative, Inc., a Corporation, Defendants-Appellees", "name_abbreviation": "Pattison v. Ford", "decision_date": "1971-04-30", "docket_number": "No. 619", "first_page": "605", "last_page": "607", "citations": [ { "type": "official", "cite": "82 N.M. 605" }, { "type": "parallel", "cite": "485 P.2d 361" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "82 N.M. 543", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334220 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0543-01" ] }, { "cite": "170 P. 741", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "23 N.M. 647", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2396902 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/23/0647-01" ] }, { "cite": "170 P. 886", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "23 N.M. 663", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2396427 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/23/0663-01" ] }, { "cite": "52 N.M. 272", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579501 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/52/0272-01" ] }, { "cite": "430 P.2d 392", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1967, "opinion_index": 0 }, { "cite": "78 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323146 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0234-01" ] }, { "cite": "70 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850519 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0380-01" ] }, { "cite": "78 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321625 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0101-01" ] }, { "cite": "72 N.M. 322", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2856445 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0322-01" ] } ], "analysis": { "cardinality": 432, "char_count": 7720, "ocr_confidence": 0.687, "pagerank": { "raw": 1.6975381521830127e-07, "percentile": 0.7002580073201179 }, "sha256": "10b9c00e438c21b1f76e92a5cb053497940a0983d734c3c023f7c2d6d4232d97", "simhash": "1:efad67a5991b8c74", "word_count": 1280 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and SUTIN, J., concur." ], "parties": [ "Roger PATTISON, dba Yerba Feed Pens, Plaintiff-Appellant, v. A. T. FORD and Roosevelt County Electric Cooperative, Inc., a Corporation, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nPlaintiff sought damages for alleged fraud in connection with two boilers and the cost of electrical service. Defendants moved to dismiss the complaint. In granting the motion, the trial court stated: \u201c * * * assuming, for the purpose of the motion, that all allegations pleaded by the plaintiff are true, he is not entitled to the relief prayed for.\u201d Thus, the dismissal was for failure to state a claim upon which relief can be granted. Section 21-1-1(12) (b) (6), N.M.S.A.1953 (Repl.Vol. 4). The issue, then, in plaintiff\u2019s appeal, is whether \u201c * * * it appears that plaintiff cannot recover or be entitled to relief under any state of facts provable under the claim. * * * \u201d Jones v. International Union of Operating Engineers, 72 N.M. 322, 383 P.2d 571 (1963). In deciding this issue, we examine the reasons relied on by the trial court in dismissing plaintiff\u2019s complaint.\nThe complaint alleges negotiations for electrical service were instituted by defendant Ford, acting on behalf of the electric cooperative; that Ford figured the cost of operating three boilers, eight hours per day, and figured 7,200 kw hours at a cost of 8 mills per kilowatt [sic], or $57.60 per day. It is alleged that this cost was figured on a blank agreement for electrical service, on a form prepared by the cooperative, and that \u201c * * * a copy of said agreement for electric service, with the figuring as to the cost per kilowatt hour by the defendant Ford, and as represented to plaintiff, * * * \u201d is Exhibit A to the complaint.\nSubsequently, plaintiff signed a contract for electrical service, identified as Exhibit C to the complaint. Plaintiff alleges he did not read the contract before signing it because of Ford\u2019s \u201cprior representations;\u201d that the present \u201cdemanded charge\u201d is four times the eight mill rate \u201cquoted by the defendant Ford in his official capacity;\u201d \u201c * * * [t]hat plaintiff was assured by the defendant Ford, at the time of their first negotiations and thereafter, that all of the electricity charges would be as herein-above represented * * *; \u201d that \u201c * * * [b]y reason of the specific statements and figures presented by the defendant Ford, * * * \u201d plaintiff purchased the boilers and contracted for electrical service from the cooperative.\nThe elements of fraud are stated in Prudential Insurance Company of America v. Anaya, 78 N.M. 101, 428 P.2d 640 (1967), and Sauter v. St. Michael\u2019s College, 70 N.M. 380, 374 P.2d 134 (1962). No claim is made and the complaint was not dismissed on the basis that the elements of fraud were not pleaded.\nThe trial court ruled that \u201c* * * plaintiff has failed to allege any legal excuse to read the electric service agreement so signed by him. * * * \u201d This is incorrect. Plaintiff alleged he was induced to enter the contract by Ford\u2019s prior .fraud. As to fraud in the inducement see McLean v. Paddock, 78 N.M. 234, 430 P.2d 392 (1967). There are circumstances where a failure to read a contract, before signing it, does not bar recovery for fraud. See Davis v. Campbell, 52 N.M. 272, 197 P.2d 430 (1948); Morstad v. Atchison, T. & S. F. Ry. Co, 23 N.M. 663, 170 P. 886 (1918); Vermont Farm Mach. Co. v. Ash, 23 N.M. 647, 170 P. 741 (1918). Since, under facts provable under the claim, plaintiff might recover even though he failed to read the contract, the trial court erred in dismissing on this ground.\nThe trial court ruled that \u201c * * * plaintiff is charged with knowledge of the schedule of rates contained in the contract, as shown by the exhibits. * * * \u201d This basis for dismissal is erroneous because the contract in the record before us, which is Exhibit C, contains no schedule of rates. A schedule of rates is a part of Exhibit A but there is nothing in the exhibits, nor in the complaint, indicating this schedule applies to the contract signed by plaintiff. The only cost figures in Exhibit C refer to a minimum kilowatt \u201cdemand\u201d for billing purposes and a minimum monthly charge. Both m\u00ednimums exceed the comparable m\u00ednimums stated in Exhibit A. Defendants, in their brief, explain these charges and assert they do not represent a change in rates over the \u201cpreliminary figuring,\u201d but nothing in the record supports these assertions. We do not go outside the record. State v. Andrada (Ct.App.), 82 N.M. 543, 484 P.2d 763, decided March 26, 1971. With these discrepancies between Exhibits A and C, we cannot state that plaintiff would not be entitled to relief under any state of the provable facts.\nThe trial court ruled that: \u201c * * * the form of agreement for electrical service and the large power service schedule, a copy of which is attached to the complaint as Exhibit \u2018A\u2019, and the contract signed by the plaintiff for electric service, a copy of which is attached to the complaint as Exhibit \u2018C\u2019, show the schedule of the charges to be made. * * * \u201d We have previously pointed out that Schedule C does not show a schedule of charges; that it refers only to a minimum monthly charge and a minimum kilowatt \u201cdemand,\u201d both of which conflict with Schedule A and are unexplained in the record. Thus, any showing as to the charges to be made must appear in Schedule A.\nOne sheet of Exhibit A shows the calculation of 7200 kw hours at 8 mills per kilowatt hour. The same sheet contains the notation: \u201c72 hrs = 10% load factor to get 8 mil [sic] rate.\u201d Defendants contend this notation shows the number of hours plaintiff would h\u00e1ve to operate his equipment, and at what load factor, in order to reach an eight mill rate. Thus, defendants assert the notation on which they rely should be accepted as true, without any evidence concerning that notation. They disregard plaintiff\u2019s claim of a \u201cquoted rate\u201d of 8 mills.\nExhibit A contains a sheet which itemizes various items of equipment. Defendants state this is a listing of electrical equipment, other than the boilers. They assert plaintiff has ignored the amount of electrical energy this other equipment would use. The complaint, however, alleges that \u201call of the electricity charges would be as hereinabove represented;\u201d that is, at the eight mill rate.\nThere are two sheets in Exhibit A which lend support to the view that the eight mill rate was part of a graduated scale of \u201cenergy\u201d rates and that the energy rate was to be distinguished from a \u201cdemand\u201d rate. Defendants assert that the various sheets in Exhibit A show plaintiff was furnished with information setting out the demand charges and the energy charges. The complaint alleges, however, that the \u201cdemanded charge\u201d is four times the \u201cquoted\u201d eight mill rate. The fact that \u201cdemand\u201d charges appear in Exhibit A does not answer plaintiff\u2019s claim that he was quoted an eight mill rate for all electrical charges.\nSpecifically, part of Exhibit A, on which plaintiff relies, does appear to contradict the \u201crepresentations\u201d on which plaintiff also relies. With this apparent contradiction, it cannot be held, without any explanation as to the figuring or the representations, that the figuring contained in Exhibit A \u201cshows the schedule of charges to be made.\u201d Nor can we hold, in the light of the allegations of the complaint, that plaintiff cannot recover under any state of facts provable under the claim.\nThe order of dismissal is reversed. The cause is remanded with directions to set aside the order of dismissal and reinstate the complaint on the docket.\nIt is so ordered.\nSPIESS, C. J., and SUTIN, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "James C. Compton, Portales, for appellant.", "Jay Morgan, Portales, for appellees." ], "corrections": "", "head_matter": "485 P.2d 361\nRoger PATTISON, dba Yerba Feed Pens, Plaintiff-Appellant, v. A. T. FORD and Roosevelt County Electric Cooperative, Inc., a Corporation, Defendants-Appellees.\nNo. 619.\nCourt of Appeals of New Mexico.\nApril 30, 1971.\nJames C. Compton, Portales, for appellant.\nJay Morgan, Portales, for appellees." }, "file_name": "0605-01", "first_page_order": 661, "last_page_order": 663 }