On motion for rehearing defendant asserts that we refused to pass upon two material questions raised in his brief. This seems to be correct, and they will now be considered.
It is said that this action was prematurely brought because no demand was made upon defendant for performance prior to the filing of this suit, as required (as it is asserted) by the following statute: "No contract for labor, or for the payment or delivery of property in which the time of performance is not fixed, can be converted into a money demand until a demand of performance has been made and the maker refuses, or a reasonable time is allowed for performance." Sec. 53-703, N.M.Sts. 1941.
We are of the opinion that the statute has no application to this action. It is not claimed or argued that this is an action *Page 63 on a contract for labor. The contention is that the plaintiff was required by the statute quoted, to make demand upon defendant to execute to plaintiff a deed to the property before he could legally be sued.
But there was no contract between the plaintiff and the defendant for the "delivery of property in which the time of performance is not fixed". Indeed, there was no contract at all between plaintiff and defendant regarding the conveyance of property. This is an action for damages for alleged fraud. If defendant had not sold the mineral rights he might have been compelled to convey the property to plaintiff as a trustee ex maleficio, but he did not contract to do so. No such demand was necessary as a prerequisite to bringing suit.
It is said that the trial court erred in giving to the jury instruction No. 7. The first part of this instruction is a somewhat involved statement of abstract propositions of law regarding the duties of a real estate broker to his principal. These were followed by their application to the facts of this case, in the following language:
"In deciding this case, I therefore charge you that if you believe from a preponderance of the evidence that the plaintiff employed the defendant as a broker to purchase the land in question from the owner for the plaintiff, as claimed by him, and if the defendant did not act in good faith with the plaintiff as his duty was to act as hereinbefore explained to you, then I charge you that you should find the issues in favor of the plaintiff and assess his damage in such sum as you deem proper but not to exceed the sum of $1600.00.
"I further charge you that if the plaintiff has failed to establish the alleged contract by a preponderance of the evidence, or if he has failed to establish the alleged unfaithful conduct and alleged unfair dealing on the part of the defendant, then and in that event you should find for the defendant."
The first objection to this instruction is in substance that there was no substantial evidence indicating the defendant's bad faith. The evidence on this question was reviewed by us in the original opinion and disposed of by a holding against this contention. We find no reason to reconsider it.
The second objection is as follows: "The instruction is misleading in stating to the jury the abstract proposition of law that a broker is not permitted to advance his own personal interests by discharging the duties of his position in the matter, to make a secret profit for himself and that the rule precludes a broker from taking secret interest in a contract which he is authorized to negotiate." *Page 64
The abstract propositions of law mentioned are not attacked as being incorrect; and while it would have been better practice to have applied the law specifically to the facts of this case without the unnecessary and lengthy statement of abstract propositions of law, we are of the opinion that it was not reversible error to do so, if they did not mislead the jury. 53 A.J. "Trial" Sec. 573. It has been held that this is so even when they are outside the issues; providing the jury is charged that the plaintiff cannot recover unless he had established the facts necessary to a recovery, as the jury must have found in this case. Wren v. Seattle, 100 Wash. 67, 170 P. 342, 3 A.L.R. 1123. We are satisfied that the jury was not misled by the instruction. The trial court did not err in the particulars stated, by giving instruction No. 7.
It is asserted that this court did not expressly dispose of the question raised by the defendant as to whether there was an enforceable contract between the litigants. We think the disposition made of the case indicates our holding that there was substantial evidence of a contract between the parties, whereby the defendant was employed to purchase for plaintiff certain property and that defendant bought the property for himself and another, which, if he did so act, was bad faith. Whether there was bad faith was a question for the jury, not for this court, to decide.
The motion for rehearing should be denied, and it is so ordered.
LUJAN, SADLER, and COMPTON, JJ., concur.
McGHEE, J., did not participate.