Concrete Machinery & Supply Company, a Corp. v. Waara

• Decision Date: 09 December 1933
• Docket Number: Civil 3305
• Citation: 42 Ariz. 512,27 P.2d 682
• Parties: CONCRETE MACHINERY & SUPPLY COMPANY, a Corporation, and JOHN SCARLETT, Appellants, v. J. WILLIAM WAARA, Appellee
• Court: Arizona Supreme Court

27 P.2d 682

42 Ariz. 512

CONCRETE MACHINERY & SUPPLY COMPANY, a Corporation, and JOHN SCARLETT, Appellants, v. J. WILLIAM WAARA, Appellee

Civil No. 3305

Supreme Court of Arizona

December 9, 1933

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Messrs Clark & Clark, for Appellants.

Mr Louis H. Bunte, for Appellee.

OPINION

LOCKWOOD, J. J.

William Waara, hereinafter called plaintiff, brought suit against John Scarlett, Roy H. Heartman and Yavapai Gold Mining Co Limited, a corporation, the latter hereinafter called the company, for services which plaintiff alleged he had rendered at the special instance and request of defendants, and each of them, of the value of $1,309.20. The company and Scarlett were served personally in Yavapai county. No summons was ever served upon Heartman nor did he enter an appearance in the case, and no judgment was rendered against him. On the same day that the summons was served, a writ of attachment was levied on certain mining equipment and machinery located in Yavapai county and then in the possession of either Scarlett individually or of the company. The Concrete Machinery &amp Supply Company made claim to part of the machinery levied upon, and gave bond in the manner prescribed by article 10, chapter 93, Revised Code 1928 (section 4368 et seq.), and at the same time Equitable Finance Corporation made claim in the same manner to another portion of such machinery. A few days later Scarlett gave a bond in release of the attachment on the remaining part of the property. Thereafter both the company and Scarlett answered, denying any indebtedness to plaintiff. By stipulation of counsel the two proceedings to determine the ownership of the attached property and the main action were consolidated for the purpose of trial and heard by the court sitting without a jury, and judgment was rendered in the main action against Scarlett and the Yavapai Gold Mining Co., Ltd., jointly and severally, in the sum of $1,309.20, with interest, and in the other two ancillary actions against Concrete Machinery & Supply Company and surety in the sum of $1,500, with interest and 10 per cent. damages and costs, and against Equitable Finance Corporation in the sum of $400, with interest and 10 per cent. damages and costs. The Yavapai Gold Mining Co., Ltd., and Equitable Finance Company did not appeal from the judgments against them, and the latter paid the judgment rendered against it, amouting to the principal sum of $400, with interest and the 10 per cent. damages and costs assessed thereon in accordance with the statute; this appeal being taken only by Scarlett and the Concrete Machinery & Supply Company.

There are some five assignments of error which raise in substance three questions of law. The first is whether or not the evidence sustains the judgment as against Scarlett; the second whether or not the evidence sustains the judgment against Concrete Machinery & Supply Company; and the third whether judgments could properly be rendered which as against all of the parties aggregate some $3,000, when the original claim was for the sum of $1,309.20 only.

In order that we may answer these questions, it is necessary that we make a brief statement of the ultimate facts in the case. In so doing we must, of course, interpret the evidence in the most favorable light in support of the judgment rendered by the trial court and the findings of fact either made by it or necessarily implied to support the judgment. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587; Thomas v. Newcomb, 26 Ariz. 47 221 P. 226; First Baptist Church v. Connor, 30 Ariz. 234, 245 P. 932.

Thus considered, the evidence may be said to support the following facts: Yavapai Gold Mining Co., Ltd., was a foreign corporation which owned certain mining claims in Yavapai county, but had not until after the filing of this action complied with the provisions of section 657, Revised Code 1928, which requires all foreign corporations, with certain named exceptions, to perform certain acts before they are permitted to do any business within the state of Arizona. Defendant Heartman was on the twelfth day of August, 1931, the general manager of the company, and defendant Scarlett had been employed by it as its local superintendent in Yavapai county. On that day Heartman telegraphed plaintiff asking him to meet them at Congress Junction in Yavapai county to confer in regard to some work. On August 19th plaintiff, Heartman, and Scarlett met on the company's property, and plaintiff was employed by them to do certain work in connection with various mining claims and the developing of water necessary to work the claims; no mention being made of the company. From that time on until the 19th of November plaintiff performed services in connection with these matters, the reasonable value of which, according to his testimony, was the amount sued for, plus $50 which he received on account. He rendered a bill for these services to all three of the defendants, the company, Heartman, and, Scarlett, stating later as his reason therefor that the company was not authorized to do business legally in the state, and that he knew Heartman and Scarlett were responsible for the work. Apparently from plaintiff's testimony the interests of Heartman, Scarlett and the company were so intermixed that it was difficult to state just who was the owner of the property on or for which he did work at the particular time the work was done, though it was understood that ultimately the company would probably secure title to all the property.

When the claim of the Concrete Machinery & Supply Company to the attached property was tried out, Scarlett was the only witness on behalf of the claimant....