Craft v. Cannon

• Decision Date: 19 January 1942
• Docket Number: Civil 4394
• Citation: 58 Ariz. 457,121 P.2d 421
• Parties: M. R. CRAFT, Doing Business Under the Firm Name and Style of ARIZONA WHOLESALE ELECTRIC CO., Appellant, v. J. E. CANNON, Doing Business Under the Firm Name and Style of CANNON ELECTRIC COMPANY, Appellee
• Court: Arizona Supreme Court

121 P.2d 421

58 Ariz. 457

M. R. CRAFT, Doing Business Under the Firm Name and Style of ARIZONA WHOLESALE ELECTRIC CO., Appellant, v. J. E. CANNON, Doing Business Under the Firm Name and Style of CANNON ELECTRIC COMPANY, Appellee

Civil No. 4394

Supreme Court of Arizona

January 19, 1942

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and cause remanded with directions.

Messrs Stockton & Karam, Mr. Eli Gorodezky and Mr. J. W. Cherry Jr., for Appellant.

Messrs Woolf & Shute, for Appellee.

OPINION

ROSS, J.

This is an appeal from a judgment dismissing plaintiff's complaint and awarding costs to defendant.

The action is by M. R. Craft, doing business under the firm name and style of Arizona Wholesale Electric Co., against J. E Cannon, doing business under the firm name and style of Cannon Electric Company, and is for the agreed and reasonable value of goods, wares and merchandise sold and delivered to defendant between the dates commencing August 8, 1931, and ending July 2, 1937, less payments credited thereon.

The defendant's answer consists of a general denial and a plea of the statute of limitations.

The judgment fails to show the grounds upon which the dismissal was made. Defendant's motion to dismiss, filed June 10, 1940, to which the judgment was a response, set forth three grounds for dismissal of the action:

1. Failure of plaintiff to prosecute the action with diligence, or at all.

2. Failure to furnish a bill of particulars pursuant to defendant's "Demand for Items of Account and Bill of Particulars," filed March 27, 1939.

3. Failure of plaintiff to comply with an order of the court of April 17, 1939, granting defendant's motion for a bill of particulars.

The dismissal might have been for any one or all of said grounds. We will consider the grounds together and ascertain from the record whether the dismissal was justified for the reasons asserted.

The action was filed November 18, 1938. Defendant answered December 9th by general denial and the plea of limitation. The case being at issue, plaintiff filed a motion on December 14, 1938, asking that it be set for trial. On December 19, 1938, in response to this motion, the case was set down for trial April 4, 1939, and on March 27, 1939, more than three months later and within eight days of the trial setting, defendant filed a "Demand for Items of Account and Bill of Particulars," and on April 4th the plaintiff furnished defendant a bill of particulars

"showing the dates of purchase or delivery of the merchandise sold by plaintiff to defendant, the invoice number covering each sale, the amount of each invoice and the payments made thereon."

This bill of particulars was not satisfactory to defendant and on April 13, 1939, he filed exceptions to it, and these exceptions were sustained by the court on April 17, 1939, and the plaintiff was required to file another bill of particulars, but without limitation of time.

While the case stood in that status, the plaintiff, on September 21, 1939, again moved that it be set for trial and when the motion came on for hearing on September 25th the defendant objected to the setting of the case until a bill of particulars was filed, the minute entry being "let the record show that the Court is of the opinion that the bill of particulars must be filed before case can be set for trial."

On June 10, 1940, Messrs. Moore & Romley, who had filed the action for plaintiff, with the permission of the court withdrew as attorneys for plaintiff, and on June 17, 1940, Henderson Stockton and S. N. Karam were substituted as plaintiff's attorneys.

On June 22, 1940, plaintiff's attorneys filed a bill of particulars

"showing the dates of purchase and delivery of the merchandise sold by plaintiff to defendant, the invoice number covering each sale, the quantity of each item, description of each item, the price thereof and the payments and credits made thereon."

This last bill of particulars complied with the law in te last detail, and covers some 90 pages of the abstract. It differed from the one filed on April 13, 1939, in that it set out a copy of the plaintiff's books of entry, showing debits and credits, whereas the early one gave only the date of purchase, the number of the invoice and the amount of each invoice and the payments thereon.

On July 1, 1940, the court entered its order (granting defendant's motion filed June 10, 1940), dismissing the action and striking the bill of...