On Motion for Rehearing. Our opinion is challenged by motion for rehearing filed by the plaintiff (appellee). Careful consideration leaves us satisfied that the result announced is correct as based on the conclusion that the so-called superseding contract declared upon represents nothing more than a new promise to pay the old debts and is unenforceable because not in writing. Nothing new upon that controlling issue is developed by the plaintiff and it would be futile to rehear the same.
We are persuaded, however, that in going beyond the facts of the case before us and holding the new promise, even if in writing, would be unenforceable because based upon a contingency, the consummation of which rested wholly with the promissor, we may be in error. The finding was that the debtor would pay the plaintiff as soon as he could sell the garage and filling station for a fair price without sacrificing the same and that a reasonable time for making such sale would be granted. It is debatable whether the plaintiff could forestall commencement of the running of the statute by an arbitrary refusal to sell at a given price upon the ground that the same was not "fair". Good faith might be *Page 373 deemed a test of the right to refuse. Cf. Atma v. Munoz, 48 N.M. 114, 146 P.2d 631.
We need not resolve this question since the promise or contract declared upon being oral, any conclusion as to its legal effect had it been in writing becomes speculative and unimportant and more appropriately might have been omitted in the first instance. Accordingly, so much of the opinion as deals with that question will be withdrawn. Otherwise it will remain as written and a rehearing of the grounds upon which it rests as well as request for oral argument thereof will be denied.
It is so ordered.
MABRY, C.J., and BICKLEY, BRICE, and LUJAN, JJ., concur.