I concur in the decision that the trial court committed error against the appellant in making its finding and conclusion that there was no mutuality of obligation between the parties under the contract, and that the contract was therefore unilateral and unenforceable. Since this is the only decision the trial court made as a basis for its judgment, the judgment should be reversed and the cause remanded for a new trial.
From the opinion of the majority it appears that the trial court construed the pertinent paragraph of the lease, "to authorize the appellant-lessor to terminate the lease at her will without reference to whether she was dissatisfied with, or had exercised her judgment, honest or otherwise, regarding the manner of the cultivation of the crops."
It thus appears that the trial court's judicial mind did not reach or decide the question of whether there had been a "good faith" termination of the lease.
As the majority say, the issue tendered by the appellant (plaintiff below) was that the lease contract had been breached and that the appellant terminated it in good faith because of the breach.
This issue was never decided by the trial court.
It is apparent that the trial court's refusal of appellant's requested finding of a good faith election by appellant to terminate the lease was due to the opinion of the court that such a finding was immaterial in view of the decision that the lease was void for lack of mutuality of covenants.
It has been many times decided that questions not reached or decided by the trial court are not reviewable on appeal. See Chavez v. McKnight, 1 N.M. 147; State v. Baker, 35 N.M. 55,289 P. 801; Palma et al. v. Weinman et al., 13 N.M. 226, 82 P. 360.
It is apparent that the appellee was satisfied with the judgment of the court based upon a theory which the majority say was erroneous.
If upon appeal the appellee had desired to present the proposition that the court had committed errors against him in failing to consider the issue of whether the lease had been terminated in good faith and make a finding that it had not been so *Page 122 terminated, preparatory to asking the Supreme Court to "consider and determine whether, notwithstanding error committed against appellant * * *," the judgment should be affirmed because of such error against appellee, the way was open to appellee under Supreme Court Rules Nos. 12 and 17 (Par. 2).
Appellee, neither in the praecipe in lower court calling for additional portions of the record, nor here, has assigned error committed against him.
If such an assignment of error had been made, the appellee would be in a poor position because he never requested the court to determine the issue of good faith termination of the lease, by specific request for findings or otherwise.
The appellee has not put himself in the position of a cross-appellant. Even if he had, he would be confronted with the general rule that errors operating against appellee will not be considered unless duly assigned. 3 C.J., Appeal and Error, § 1568; 4 C.J.S., Appeal and Error, § 1300.
I have no fault to find with the statement of the majority that: "If, notwithstanding the erroneous theory of law upon which the trial court's decision rested, its judgment can be sustained upon correct legal principles, it will not be reversed merely because the reasoning, or a conclusion of law of the trial court, is erroneous."
The trouble is that these principles have no application to the situation in the case at bar. The principles embodied in the quotation do not authorize a reviewing court to usurp the power, function and duty of the trial court to make decisions on factual issues tendered and to make findings of fact and conclusions of law pertaining to such decisions.
The trial court having made no decision or findings of fact or conclusions of law upon the issue of good faith termination of the lease, the majority proceed to examine the record of the evidence and assume a finding of lack of good faith and say, in effect, that such an assumed finding is supported by substantial evidence.
In my opinion, such a procedure carries the majority, of their own motion, far afield from recognized and proper principles of review.
I therefore dissent from the decision affirming the judgment and the reasoning upon which such decision is based.
SADLER, C.J., concurs. *Page 123