Commercial Credit Co. v. Street, Civil 2950

• Decision Date: 03 October 1930
• Docket Number: Civil 2950
• Parties: COMMERCIAL CREDIT COMPANY, a Corporation, Appellant, v. F. M. STREET, Appellee
• Court: Arizona Supreme Court

291 P. 1003

37 Ariz. 204

COMMERCIAL CREDIT COMPANY, a Corporation, Appellant, v. F. M. STREET, Appellee

Civil No. 2950

Supreme Court of Arizona

October 3, 1930

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.

Mr Lawrence L. Howe, for Appellant.

Mr Albert D. Leyhe, for Appellee.

OPINION

ROSS, J.

This case was before this court once before. Street v Commercial Credit Co., 35 Ariz. 479, 67 A.L.R. 1549, 281 P. 46. It was very carefully considered. The material facts being set out in the opinion will not be repeated. Suffice it to say that the issues and facts in the two trials are not materially different.

Upon the first trial the lower court instructed a verdict for the defendant, Commercial Credit Company. The questions presented on that appeal were (1) whether, under the Uniform Conditional Sales Act (chapter 40, Laws 1919, now chapter 67, Revised Code of 1928 [sections 2889-2908], the buyer of an automobile who had defaulted in one of the stipulated installments could, by timely paying or tendering to the seller, or assignee, the delinquent installment, with interest and all expenses of keeping and storage, lawfully demand from the seller, or his assignee who had taken peaceable possession against the buyer's will, a redelivery of the automobile, notwithstanding the contract contained a clause accelerating all installments for such a default; (2) the sufficiency of the tender of the delinquent installment; and (3) whether the buyer by temporarily removing the automobile from Maricopa county had forfeited her contract. This court answered the first proposition in the affirmative, held the tender good, upon the admission of the defendant, and that the removal from the filing district did not amount to a breach of the buyer's contract, but that, if it did, its voluntary return, together with the tender of delinquent installments as required by section 18 of the Uniform Conditional Sales Act (Rev. Code 1928, § 2902), reinstated the contract. The judgment was reversed, and a new trial ordered "in accordance with the principles above set forth."

Upon the retrial, "the principles above" were observed by the court in its rulings and instructions to the jury. The jury returned a verdict for the plaintiff, whereupon judgment was duly entered.

The defendant appeals from the judgment and assigns eight errors, seven of which involve, directly or indirectly, the correctness of the rulings of this court upon the former appeal. Those rulings, however, were made upon substantially the same facts and legal contentions as were presented in the second trial, and under the decisions became the law of the case. The law, as stated in 4 Corpus Juris, 1093, section 3075, fortified by numerous cases, among them four from Arizona, is:

"It is a rule of general application that the decision of an appellate court in a case is the law of that case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first decision rested, and, according to some authorities, provided the decision is on the merits. This doctrine is not one whose extension is looked upon with favor, and it is adhered to in the single case in which it arises and is not carried into other cases as a precedent."

The cause of action alleged in the complaint, upon which both trials were had, is technically one for conversion, although no contention was made before the trial court or this court upon the first trial that the facts proved did not sustain the allegations of the complaint. Upon the second trial, and at its close, for the first time the defendant requested an instruction to the effect that it was incumbent upon plaintiff to prove by a preponderance of the evidence that at the time defendant repossessed the automobile plaintiff was its legal owner,...