Bianco v. Firemen's Fund Indem.

• Decision Date: 11 June 1951
• Docket Number: No. 5265,5265
• Citation: 232 P.2d 386,72 Ariz. 181
• Parties: BIANCO et al. v. FIREMEN'S FUND INDEMNITY et al.
• Court: Arizona Supreme Court

Page 386

232 P.2d 386

72 Ariz. 181

BIANCO et al. v. FIREMEN'S FUND INDEMNITY et al.

No. 5265.

Supreme Court of Arizona.

June 11, 1951.

Rehearing Denied July 6, 1951.

Raymond Allee, of Phoenix, Fred C. Struckmeyer, Jr., of Phoenix, for appellants.

Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., Henry S. Stevens and Rex H. Moore, all of Phoenix, for appellees.

PHELPS, Justice.

This is an appeal from an order directing a verdict in favor of defendants-appellees and from orders denying plaintiffs-appellants' motions to set aside the judgment, for summary judgment and for a new trial.

The facts are that during the year 1948 appellants were engaged in produce farming in Pinal County, Arizona; that in March of that year they entered into an oral agreement with Leonard Wernikoff and Robert James Stone (the latter acting as agent of Wernikoff in negotiating the transaction) to (1) market cantaloupes grown by appellants on a 165-acre tract, and (2) honeydews grown on a 60-acre tract during that year, and also for the growing of cantaloupes and honeydews on a 345-acre tract of land owned by appellants on a share-crop basis. Both Wernikoff and Stone were licensed commission merchants in Arizona, the former doing business as American Vegetable Growers, and the latter as Richstone Distributors. Pursuant to the provisions of the Fruit and Vegetable Standardization Act of Arizona each were bonded in the sum of $5000. The Firemen's Fund Indemnity, a corporation, carried the coverage for Wernikoff and the Great American Indemnity Company, of New York, carried the coverage for Stone.

The Arizona Fruit and Vegetable Standardization Act requires persons who are licensed to do business as commission merchants to keep correct records of every consignment of farm products received for sale and section 49-1016(a), A.C.A.1939, provides that: 'Unless otherwise agreed in writing, remittance in full of the amount realized from any such sale, including all collections, overcharges, and damages, less the agreed commission and other charges, and accompanied by a complete statement of the transaction, shall be made to the consignor within ten (10) days after receipt of the money by the commission merchant.'

Appellants were not paid for the melons grown by them on the 165-acre and the 60-acre tracts nor was there an accounting made to them therefor. Neither were they paid in full, nor an accounting made, for melons grown on the 345-acre tract cultivated on a share-crop basis. They therefore brought this action against both Wernikoff and Stone and the bonding companies on two separate counts praying for an accounting and for a judgment against Wernikoff and Stone and their sureties for the amount found to be due.

The cause was tried to a jury and submitted on special interrogatories. Upon the answers given thereto the court entered judgment against both Wernikoff and Stone for the sum of $12,474.82 on the first cause of action and for $770.55 on the second cause of action from which no appeal was taken. On motion of appellants the court dismissed the second cause of action against appellees Firemen's Fund Indemnity and Great American Indemnity Company, of New York.

Subsequently, at the close of all the evidence, appellees presented their motion to the trial court for an instructed verdict in their behalf on the first cause of action which involved the handling of melons grown by appellants on the 165-acre and the 60-acre tracts. The motion for a directed verdict was based upon the ground '* * * that the evidence fails to disclose liability upon either of the defendants or the amount thereof, and the proof fails to show liability in accordance with the obligations of the bonds as introduced in evidence by the plaintiffs.'

The court granted the motion upon the ground '* * * that the liability of each of said defendants was an individual liability as to the particular defendant they were sureties for, and that it does not extend to liability for Wernikoff and Stone as partners or as joint venturers.'

Appellants have assigned some thirteen errors all of which involve but one primary question for our determination. Did the court err in granting an instructed verdict in favor of appellees? This question can be answered only after a determination, first, of the relationship existing between Wernikoff and Stone, and second, the relationship existing between appellants and Wernikoff and Stone as created by the oral agreement of March, 1948. In order to determine these questions it will be necessary to analyze the evidence relating thereto. Apparently appellants' position here is not in complete harmony with their position during the trial of the case. While they didn't allege in their complaint the existence of a partnership between Wernikoff and Stone they did attempt, but failed, to prove such relation during the course of the trial. Singularly enough, however, appellees not only plead but introduced evidence to support their pleading that such partnership relation did not exist, while here they are attempting to maintain the position that such a partnership relation did in fact exist.

There is no express finding by the trial court that Wernikoff and Stone were partners although such relation is clearly implied in the court's order directing a verdict for appellees. Stone did not attend and testify at the trial. Wernikoff testified and emphatically denied that such a relation did exist between him and Stone and stated that Stone had no financial interest either in the share-crop agreement or the brokerage transaction. He stated he was not familiar with growing and marketing melons in the West and that he employed...