New Mexico-Colorado Coal & Mining Co. v. Baker

¶1ON REHEARING.

¶2On motion for rehearing appellant has assigned five distinct grounds of alleged error in the opinion filed in this case. Only three of these questions shall be discussed here for the reason that the other two were disposed of in our former opinion and need no discussion again.

¶3Appellant asserts that the question as to whether or not appellee breached its contract by refusing to pay for one installment of coal is properly before the court, for the reason that it was properly presented to the trial court. A reinvestigation of the record discloses that no .such' question was • raised in the trial court.

¶4[7] Appellant also asserts that the record affirmatively discloses that the court gave its charge to the jury after arguments by counsel. The record 'does disclose this to be the fact, but it further shows that “at no time did counsel for either party request that the charge of the court.be given to the jury before argument of the case,” and that by their conduct gave the court to understand that there was no "objection to such procedure. No objection was made by either of the parties to such procedure,' and the questiqn was first called to the attention of the trial court in the motion for a new trial. Appellant waived any error in respect to this question by failing to request the court at the proper time to charge the jury in the manner directed by statute, or excepting to the charge when made- The motion for a new trial, with but few exceptions, cannot perform the function of raising a new question, its function being to call to the attention of the trial court questions theretofore saved, so that the. necessity of an appeal for the correction - of error may be obviated by the granting of a new trial. No objection or exception having been made or taken as required, the question is raised here for the first time, and, not being jurisdictional, is not properly before the court.

¶5We held in our opinion in this case that no demand for deliveries of coal, on appellee’s part, was necessary because of, the unequivocal and unqualified repudiation- of the contract by appellant, citing as authority therefor the rule that where one party exercises the power of rescission without right, he commits thereby a breach of the contract, whereupon the other party may bring an immediate suit without demanding performance, although the time for performance may be in the future. Appel-' lant concedes that the doctrine is correct, but contends that its qualification should be applied, viz.: that where the innocent party treats the repudiation as inoperative and awaits the time for full performance, he thereby;' in effect, waives the breach by way of repudiation, and keeps the contract open and subsisting for all purposes. He thereupon concludes that the breach by appellant company was waived, and that appellee breached the contract by failure- to demand deliveries of coal. Our opinion in this case on this question was written on the theory that the repudiation was accepted by appellee except for purposes of suit on the contract for damages, and we are satisfied that the facts of this case justify that conclusion.

¶6Nothing else need be said in this regard except, perhaps. that under such circuustances the bringing' of immediate suit by the innocent party is simply a fact evincing an acceptance of the repudiation; hence the bringing of an immediate suit is not a condition precedent to recovery. We regard the rule to be that only a release by appellee of appellant’s liability on the contract, or the invocation of the statute of limitations, could defeat the appellee’s cause of action, neither of which is involved in this cause.

¶7The motion for rehearing is therefore denied; and it is so ordered.

¶8(Reporter’s Note- Remittitur was filed and judgment was affirmed.)