Branker v. Bowman

• Decision Date: 06 March 1945
• Docket Number: Civil 4590
• Citation: 62 Ariz. 214,156 P.2d 898
• Parties: SAM BRANKER, Appellant, v. WIRT G. BOWMAN and V. D. BROWN, as Individuals and as Copartners Doing Business Under the Firm Name and Style of "BOWMAN and BROWN," Appellees
• Court: Arizona Supreme Court

156 P.2d 898

62 Ariz. 214

SAM BRANKER, Appellant, v. WIRT G. BOWMAN and V. D. BROWN, as Individuals and as Copartners Doing Business Under the Firm Name and Style of "BOWMAN and BROWN," Appellees

Civil No. 4590

Supreme Court of Arizona

March 6, 1945

APPEAL from a judgment of the Superior Court of the County of Apache. Levi S. Udall, Judge.

Judgment affirmed.

Mr Earl Platt and Mr. Guy Axline, for Appellant.

Mr. M V. Gibbons, and Mr. James V. Robins, for Appellees.

LaPrade J. Stanford, C. J., and Morgan, J., concur.

OPINION

LaPrade, J. Sam Branker, appellant, instituted his action in the court below against Wirt G. Bowman and V. D. Brown as individuals and as copartners doing business under the firm name and style of "Bowman & Brown," seeking to recover damages in the sum of $ 2,600, itemized as $ 2,250 loss of profit and $ 350 to cover original deposit. He alleged breach of contract on the part of the defendants to deliver certain cattle purchased by plaintiff from defendants under written contract dated October 6, 1941. The contract in part reads as follows:

"Contracted from Bowman & Brown approximately 80 cows and calves at $ 80.00 a pair, at 10% cut at $ 70.00 and approximately 70 dry cows at $ 50.00 at 10% cut at $ 40.00. Deposit of $ 350.00. Cattle to be received anywhere from Nov 1 to Nov 15.

Bowman & Brown

V. D. Brown."

Plaintiff further alleged that the cattle were to be delivered at the stockyards at Chambers, Apache County, Arizona; that on November 11, 1941, he advised defendant Brown that he would receive the cattle on November 15th as contracted; that the defendants failed and refused to deliver the cattle on November 15th; and that they had in fact on or about the 10th day of November shipped the cattle by railroad to Maricopa County, Arizona.

The defendant Wirt G. Bowman answered separately. His verified answer denied that he was or ever had been a copartner of defendant V. D. Brown.

Brown denied any partnership with Wirt G. Bowman, and alleged that he was a copartner of one Teresa V. Bowman, wife of the defendant Wirt G. Bowman; admitted that he entered into the foregoing contract with plaintiff on behalf of himself and Teresa V. Bowman; admitted that he had received the $ 350 deposit mentioned in the contract; denied that they had refused to perform the contract; alleged that they were ready and willing to perform and attempted to perform on the 10th day of November, 1941; and, that the plaintiff failed and refused to receive the cattle on said date. In addition to the answer, the partnership of Brown and Teresa V. Bowman cross-complained against the plaintiff, alleging that they delivered the cattle to the stockyards on November 8th, notified plaintiff of their presence, and held the cattle until the 10th day of November when the train left; that they shipped them to Maricopa County for the reason that they were no longer able to hold the cattle; and, that plaintiff had neglected to appear and receive them and pay for them. They prayed for damages in the sum of $ 1,595 on account of freight charges and loss sustained on resale.

The case went to trial before the court without a jury. At the conclusion of the case on motion the action was dismissed as to Wirt G. Bowman, individually. The court further ordered that the plaintiff take nothing on his complaint; and, that the defendant cross-complainants take nothing.

On August 8, 1942, a formal written judgment was filed, conforming with the court's order for judgment at the conclusion of the trial. In due time motion for a new trial was filed and denied. Plaintiff thereafter regularly perfected his appeal in this court, assigning as error that the judgment "is contrary to and against the weight of evidence . . . and contrary to the law." In support of his assignments of error, appellant set forth the following proposition of law:

"Where a contract provides that chattels may be received anywhere from a fixed date to a fixed date the option to fix the date at which the property is to be received is in the party who is to receive the same."

In support of this proposition, appellant cites Sections 1-102 and 52-542, Arizona Code Annotated 1939. These sections read as follows:

"1-102. Computation of time. -- The time in which an act is required to be done shall be computed by excluding the first day and including the last day, unless the last day is a holiday, and then it is also excluded."

"52-542. Duties of seller and buyer. -- The seller shall deliver the goods, and the buyer shall accept and pay for them, in accordance with the terms of the contract to sell or sale.

"Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods."

Appellant's argument supporting the code sections just quoted is briefly set forth in his opening brief in the following language:

"It must be remembered that the contract in question required the purchaser to receive the cattle between certain dates. This required an affirmative act on the part of the purchaser, which included the receiving of the cattle and the payment of the balance of the purchase price. The purchaser under the terms of the contract had until the last day in which to receive the cattle and to make the payment. It was therefore the duty of the seller to have the cattle available for delivery until the last day and hour, and for a reasonable time thereafter if time was not of the essence of the agreement."

It is the appellee's contention that the following stated rule is the proper one to apply for the construction of the contract before us: "Where a contract provides for delivery within a certain time, or before a certain date, the party by whom the first act in performance of the contract must be done has the choice of the date or dates of performance, provided such date is within the period permitted by the contract; and in making such choice as to date of performance, such party may consult his own convenience." Citing Harman v. Washington Fuel Co., 228 Ill. 298, 81 N. E. 1017; Rosenau v. Lansing, 113 Or. 638, 232 P. 648, 234 P. 270; Hunt v. Stimson, 6 Cir., 23 F.2d 447; Duncan et al. v. Allen et al., 214 Ala. 551, 108 So. 357; In re Malko Milling & Lighting Co., D. C., 32 F.2d 825; and C. W. Ferguson Sawmill Co. et al. v. Rhynes et al., 127 Ark. 617, 191 S.W. 920.

Appellant in his reply brief admits that the proposition of law submitted by the appellees is a correct statement of the...