Rather, where Appellant requested conditions that were not required by the relevant statutes and regulations, we think it fair to put the burden on Appellant to show that such conditions were necessary. See Allsup v. Space, 69 N.M. 353, 362, 367 P.2d 531, 536 (1961) (noting the "fundamental rule" that "the party alleging and seeking affirmative relief has the burden of proof). {57} With regard to Appellant's second argument, we disagree that the hearing officer or the Secretary "failed to consider" Appellant's proposed conditions.
The New Mexico high court has further said that "in such cases the simple but comprehensive question is whether the circumstances are such that equitably [the defendant] should restore to [the plaintiff] what [he] has received." Allsup v. Space, 69 N.M. 353, 367 P.2d 531, 537 (1961) (citing Atlantic Coast Line R.R. v. Florida, 295 U.S. 301, 310, 55 S.Ct. 713, 79 L.Ed. 1451 (1935)). The judge found that Nielsen formed DHFC for the express purpose of impairing Ag Services' security interest in the potatoes.
For example, New Mexico law also recognizes that a subcontractor may recover under a theory of quantum meruit. See United States ex rel Sunworks Div. of Sun Collector Corp. v. Ins. Co. of N. Am., 695 F.2d 455, 458 (10th Cir. 1982) (citing Allsup v. Space, 69 N.M. 353, 367 P.2d 531 (1961)). See also United States ex rel DeBlasio Constr. Co. v. Mountain States Constr. Co., 588 F.2d 259, 262 n. 1 (9th Cir. 1978).
New Mexico law recognizes such a cause of action. See, e.g., Reynolds v. Slaughter, 541 F.2d 254, 256 (10th Cir. 1976); Allsup v. Space, 69 N.M. 353, 367 P.2d 531 (1961). In fact, in Terry v. Pipkin, 66 N.M. 4, 340 P.2d 840 (1959), New Mexico specifically acknowledged edged that a subcontractor who has lost his mechanic's lien claim against a property owner may have a claim in quantum meruit where the owner has not paid the general contractor.
See Restatement (Third) Restitution § 32(2) and (3).See, e.g., Eker Bros., Inc. v. Rehders, 150 N.M. 542, 263 P.3d 319, 321–323 (Ct.App.2011) (acknowledging that “[t]traditionally, restitution is thought of as an equitable remedy” and applying the Restatement (Second) of Contracts § 374 regarding restitution in favor of party in breach to award the value of benefits conferred in excess of the loss caused by that party's own breach of the contract); Romero v. Bank of the Southwest, 135 N.M. 1, 83 P.3d 288 (Ct.App.2003) (citing Restatement (Second) of Contract § 371 (1981) for the measure of the amount of a restitution claim); Allsup v. Space, 69 N.M. 353, 362, 367 P.2d 531, 537 (1961) (stating that a case involving restitution is “of an equitable nature.”); Van Sickle v. Keck, 42 N.M. 450, 81 P.2d 707 (1938) (citing the Restatements on Contracts and Restitution in connection with claim to impose equitable lien on real estate). See also, Wessel v. City of Albuquerque, 463 F.3d 1138 (10th Cir.2006) (construing New Mexico law and citing the Restatement (Second) of Contracts and the draft Restatement (Third) of Restitution in connection with a restitution claim on a contract later voided as against public policy); Reynolds v. Slaughter, 541 F.2d 254 (10th Cir.1976) (relying upon the Restatement of Restitution and the Restatement of Contracts in construing New Mexico law).
Such obligations were ordinarily enforced at common law in the same form of action (assumpsit) that was appropriate to true contract, and some confusion with reference to the nature of quasi-contracts has been caused thereby. See also Albuquerque Nat'l Bank v. Albuquerque Ranch Estates, Inc., 99 N.M. 95, 102, 654 P.2d 548, 555 (1982) (availability of equity to prevent unjust enrichment); Allsup v. Space, 69 N.M. 353, 362, 367 P.2d 531, 537 (1961) (equitable nature of claim for restitution based on unjust enrichment). As stated by the Supreme Court of Tennessee in a case allowing a claim for unjust enrichment to proceed against an owner of property benefited by a contractor who supplied labor and materials for its improvement:
The trial court had a right so to do, and, accordingly, this court will not interfere with the trial court's judgment as to the credibility of the witness. Allsup v. Space, 69 N.M. 353, 367 P.2d 531. The judgment appealed from should be affirmed, and it is so ordered.
Consequently, upon review we are bound by the finding of fact made by the trial court and we will not pass upon the weight of the evidence. Webb v. Richardson, 69 N.M. 15, 363 P.2d 626, (1961); Allsup v. Space, 69 N.M. 353, 367 P.2d 531 (1961); Sanchez v. Garcia, 72 N.M. 406, 384 P.2d 681 (1963). Harris next contends that the consideration for the note failed when the lease was cancelled and as a result it became unenforceable. It is clear from the language of the contract that the note was given for an undivided one-fourth interest in the lease.
The trier of the facts, and not this court, is the judge of the credibility of the witnesses and the weight to be given the evidence. Kilpatrick v. State, 58 N.M. 88, 265 P.2d 978; Allsup v. Space, 69 N.M. 353, 367 P.2d 531; Dodson v. Eidal Manufacturing Company, 72 N.M. 6, 380 P.2d 16. Since there is substantial evidence to support the finding, the same is conclusive on appeal.
61 more than if Mr. Tyner would have fulfilled his contract." In Allsup v. Space, 69 N.M. 353, 367 P.2d 531, this court allowed plaintiffs to recover more than their complaint sought. We said that the trial court could treat the complaint as amended to conform with the evidence admitted without objection and make findings accordingly.