Blackford v. Neaves, Civil 1999

• Court: Supreme Court of Arizona
• Writing for the Court: LOCKWOOD, Superior Judge.
• Citation: 205 P. 587,23 Ariz. 501
• Parties: MIGNON BLACKFORD and NORMA KRUSE JENNINGS, Appellants, v. FRANCIS NEAVES, Appellee
• Docket Number: Civil 1999
• Decision Date: 05 April 1922

205 P. 587

23 Ariz. 501

MIGNON BLACKFORD and NORMA KRUSE JENNINGS, Appellants,
v.
FRANCIS NEAVES, Appellee

Civil No. 1999

Supreme Court of Arizona

April 5, 1922

APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge. Affirmed.

Mr. W. K. Dial, for Appellants.

No appearance for Appellee.

OPINION [205 P. 588]

[23 Ariz. 503] LOCKWOOD, Superior Judge.

Plaintiffs herein, in their complaint, alleged that defendant was the owner of a certain automobile; and that on November 9, 1917, and at Miami, Arizona, he sold and delivered the same to plaintiffs for the agreed price of $825, $325 of which was paid at the time of delivery, and the balance agreed to be paid in various installments. The defendant at such time agreed to have the automobile put in running order at his expense, but that when, several days after the sale, plaintiffs went to get the car, it was not properly repaired, and they were compelled to have certain work done on it, which they did, at an expense of $44.50, and then put the car in the rent service at Deming, New Mexico, paying $51 license fee, and earning $8.95 per day for ten days. That thereafter, on or about the twenty-fourth day of December, defendant went to Deming and stole the car, bringing it to Arizona, whereupon this suit was commenced.

Plaintiffs further alleged that they had performed all the conditions of their contract, but that defendant had failed and refused to abide thereby, and that they were put to the expense of $41.60 in pursuing him and endeavoring to obtain possession of the car, claiming general damages in the sum of $550.60. Defendant pleads a general denial. [23 Ariz. 504] The case was tried to the court without a jury, and judgment was rendered in favor of the defendant. Motion for a new trial was duly presented and overruled, and plaintiffs appeal from the order so overruling said motion and from the judgment.

Appellants have assigned four errors in their brief, alleging that the trial court erred in its holdings: First, that defendant could forcibly take possession of the automobile for any default in payment, and retain what had been paid thereon; second, that plaintiffs waived their right to have the car put in a deliverable state because they furnished the necessary parts and took it away; third, that they were not entitled to offset the amount they paid on the car against the purchase price; and fourth, that a vendor can retake property after possession had been delivered, when vendee has made default in payments, in the absence of a forfeiture clause in the contract.

The trial court filed no findings of fact, but we must presume that its conclusions on every necessary issue were such as would support the judgment. 4 Corpus Juris, 778; Croft v. Bain, 49 Mont. 484, 143 P. 960. If, therefore, there is sufficient evidence in the record to justify the judgment, it should be sustained; otherwise it must be reversed, for this court will not substitute its opinion on controverted questions of fact for that of the trial court, when substantial evidence supports the judgment of the latter. McGowan v. Sullivan, 5 Ariz. 334, 52 P. 986; De Mund Lbr. Co. v. Stilwell, 8 Ariz. 1, 68 P. 543.

The vital point in the case is whether the transaction was an ordinary sale, with property in the automobile passing to the buyers leaving part of the purchase price unpaid; or a conditional sale, where the possession is transferred, but the ownership retained by the seller, until after full payment. If it was the former, defendant undoubtedly had no right [23 Ariz. 505] to retake the car, as it is admitted he did. He had delivered possession to the plaintiffs. There was no express agreement for rescission of the contract on failure to pay, and his only remedy was an action for the purchase price of the goods. But if the sale was only conditional, with the title retained by the defendant, the law is very different. Under such a sale, even in the absence of an express agreement to that effect, on the failure of payment, the vendor may retake possession of the property sold. Pels v. Mi...