Allsup v. Space

19 Citing cases

  1. Pickett Ranch, LLC v. Curry

    140 N.M. 49 (N.M. Ct. App. 2006)   Cited 17 times
    Declining to reach an issue the appellant did not raise before the hearing officer

    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.

  2. AG SERVICES OF AMERICA, INC. v. NIELSEN

    231 F.3d 726 (10th Cir. 2000)   Cited 57 times
    Holding that where a case involves equitable and legal issues "the court is bound by the jury's determination of factual issues common to both the legal and equitable claims."

    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.

  3. U.S. v. Western States Mechanical Contr

    834 F.2d 1533 (10th Cir. 1987)   Cited 122 times
    Holding that the availability of prejudgment interest in a Miller Act case was a matter of federal law

    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).

  4. United States, Etc. v. Ins. Co. of North Am

    695 F.2d 455 (10th Cir. 1982)   Cited 45 times
    Holding that recovery under the Miller Act is not a subcontractor's exclusive remedy against the general contractor

    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.

  5. Wagner v. Pruett (In re Vaughan Co.)

    477 B.R. 206 (Bankr. D.N.M. 2012)   Cited 23 times
    Finding the existence of the scheme satisfies the requirement of “actual intent” in the fraudulent transfer context

    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).

  6. Hydro Conduit Corp. v. Kemble

    110 N.M. 173 (N.M. 1990)   Cited 85 times
    Holding that "even though an action for unjust enrichment is not 'based on contract' in a strict theoretical sense, it is so closely related to an action which is so based that the immunity statute here, Section 37-1-23, should be construed to extend immunity to an unjust enrichment claim as well as to a claim founded on a true, but unwritten, contract"

    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:

  7. Crumpacker v. Adams

    77 N.M. 633 (N.M. 1967)   Cited 10 times

    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.

  8. Good v. Harris

    420 P.2d 767 (N.M. 1966)

    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.

  9. State v. Romero

    76 N.M. 449 (N.M. 1966)   Cited 24 times
    Stating "there is no limitation of time within which a motion must be filed under the provisions of Rule 60(b)" when the judgment is void

    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.

  10. Tyner v. DiPaolo

    76 N.M. 483 (N.M. 1966)   Cited 8 times
    Upholding finding that there was insufficient evidence of oral modification

    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.