Durazo v. Ayers

• Decision Date: 07 April 1920
• Docket Number: Civil 1749
• Parties: ALFREDO DURAZO, Sr., Appellant, v. J. S. AYERS, Appellee
• Court: Arizona Supreme Court

188 P. 868

21 Ariz. 373

ALFREDO DURAZO, Sr., Appellant, v. J. S. AYERS, Appellee

Civil No. 1749

Supreme Court of Arizona

April 7, 1920

APPEAL from a judgment of the Superior Court of the County of Pima. Samuel L. Pattee, Judge. Affirmed and remanded, with directions.

STATEMENT OF FACTS.

The plaintiff leased to the defendant some farming lands situated near Tucson, Pima county, together with farming implements some livestock and chickens, for the period beginning the eleventh day of September, 1916, and ending January 1, 1918 with the privilege to the defendant, at his option, to be signified by written notice thirty days before the expiration of his term, to have the lease renewed for one year. The lease contains the following covenants:

"The said lessor covenants that he will immediately put the pumping plant, consisting of what is known as the new well and engine, in good working condition upon said ranch, and that he will, as soon as necessary, and not later than six months from the date hereof, put what is known as the old pumping plant and engine in good working condition. And the said lessee doth hereby covenant with the said lessor that he, the said lessee, during the term of this lease, will keep the farm and buildings, and all things in and about the same and all fences, irrigation ditches, drains, gates watercourses, engines, pumping plants, fixtures and other things upon or about said farm lands in good condition and in complete repair."

Another condition of the lease was that --

"If default shall be made in any of the covenants herein contained on the part or behalf of said lessee to be paid kept or performed, then and from thenceforth it shall and may be lawful for the said lessor into and upon said premises and any part thereof wholly to re-enter, and the same to have again, repossess and enjoy as in his first and former estate. . . ."

On or about November 8, 1917, the plaintiff re-entered the said premises, took possession of the same, and dispossessed the defendant, and at the same time replevied all the personal property that had been turned over to the defendant except six cows, and in addition, under said writ, took possession of eigthty-three tons of barley and alfalfa hay of the 1917 crop.

In May, 1918, the issues having been formed, a trial was had before court and jury. In this trial, all the controverted questions of fact concerning the personal property were settled and determined; but upon the question as to whether the plaintiff or the defendant had breached the contract, or at least upon some of the issues affecting that question, the jury could not agree. Whereupon, the court ordered a partial retrial of the issues and directed that plaintiff and defendant file new pleadings incorporating therein only the issues to be retried.

The plaintiff in his amended complaint set forth three causes of action; but, as the first is not involved in his appeal, we will only state the breaches as assigned by him in his second and third causes. After alleging generally a full performance of the conditions of the contract upon his part, and particularly that he had repaired and placed in good working condition for the use of said defendant two pumping plants, he alleges that the defendant was negligent in the operation of said pumping plants and failed to operate the same in a workmanlike manner, and carelessly and negligently failed to attend and oversee the working of the said pumping plants when the same were in operation, and carelessly and negligently allowed them to deteriorate; that, by reason thereof, he was required to pay out for repairs and labor on said pumping plants the sum of $1,665.52, for which he asks judgment.

The same breach is assigned in his third cause of action, with some elaboration, and he states that by reason thereof he was unable to irrigate the alfalfa crop on said premises during the year 1918, to his damage in the sum of $9,000, for which he asks judgment.

The defendant, in his answer, denies the allegations of the plaintiff's complaint as set forth in the second and third causes of action, and in a separate defense, by way of counterclaim, the defendant alleges:

That the plaintiff breached his contract, in this:

"That he did not immediately after the execution of said lease contract, or at all, at any time thereafter, put the pumping plant, consisting of what is known as the new engine and well, in good working condition; and that he did not and as soon as necessary, or within six months from the date of said lease contract, or at any time thereafter, put what is known as the old pumping plant and engine in good working condition."

That, by reason thereof, defendant expended the sum of $700 in attempting to place the same in good working condition. That, because said pumping plants were not in good condition, defendant was unable to procure water in sufficient amount to irrigate his crops during the growing season of 1917, and that he suffered damages in the sum of $10,000, for which he asks judgment.

That in due time defendant exercised his option for renewal of the lease for one more year, but that the plaintiff, notwithstanding, had dispossessed him of the premises and had replevied all of the personal property, including livestock and farming implements, and had refused to renew the lease, to his damage in the sum of $15,000, for which he asks judgment.

The defendant, as a further and separate defense and counterclaim, set forth proper allegations of ownership in himself and conversion by plaintiff of eighty-three tons of barley and alfalfa hay, valued at $2,800, and asks for judgment.

The plaintiff, in his reply to defendant's answer and counterclaim, denied generally all of the allegations of new matter therein set forth, and further alleged that, if the defendant had suffered any damages as set forth in said causes of action, the same were occasioned by the defendant's breach of the contract, and were the result of defendant's own negligence and carelessness, and were not the fault of the plaintiff.

In September, 1918, upon the issues thus formed, a second trial was had; interrogatories were submitted to the jury to be answered by them and returned into court as their verdict; and it was stipulated by the parties that the court should render judgment in accordance with the answers returned, and further that all questions not covered by the interrogatories should be determined by the court and judgment rendered accordingly. The interrogatories and answers returned by the jury are as follows:

"Interrogatory No. 1. Did the plaintiff, Durazo, immediately after entering into the lease contract with Ayers, put the new pumping plant consisting of the new well and engine in good working condition? Answer: No.

"No. 2. Did the plaintiff, Durazo, as soon as was necessary or within six months after the date of the lease contract, put what was known as the old pumping plant and engine in good working condition? Answer: No.

"No. 3. Did the defendant, Ayers, keep the new pumping plant in good condition and in complete repair during the time he occupied the premises under the lease? Answer: Yes.

"No. 4. Did the defendant, Ayers, keep the old pumping plant in good condition and in complete repair during the time he occupied the premises under the lease? Answer: Yes.

"No. 5. If you answer that the plaintiff, Durazo, did not put both or either of the pumping plants in good condition, then did the defendant, Ayers, suffer loss of crops by reason thereof, and, if so, what was the amount of his loss or damage? Answer: Yes, $11,000.

"No. 6. Did the defendant, Ayers, expend money in placing or attempting to place the pumping plants in good condition to use them, and if so, what amount? Answer: Yes, $500.

"No. 7. Did the defendant, Ayers, in good faith and with the honest intent to occupy the leased premises for an additional year give notice to the plaintiff of his intention to avail himself of the privilege of a renewal of the lease? Answer: Yes.

"No. 8. Did the defendant, Ayers, voluntarily relinquish possession of the leased premises during the month of November, 1917? Answer: No.

"No. 9. Was the defendant, Ayers, compelled by the action taken by the plaintiff, Durazo, to vacate the leased premises during the month of November, 1917? Answer: Yes.

"No. 10. If you find that the plaintiff, Durazo, did not put the pumping plants, or either of them, in good working condition, what would it have cost the defendant, Ayers, to have put the said pumping plants, or either of them, in such condition? Answer: $2,000.

"No. 11. What damage, if any, did the defendant, Ayers, sustain by reason of the failure of the plaintiff, Durazo, to renew the lease for an additional period of one year? Answer: $10,000.

"No. 12. Did the plaintiff, Durazo, suffer any loss to the crop of alfalfa during the year 1918 by reason of the defendant Ayers' failure to keep the pumping plants in good working condition? Answer: No. . . .

"No. 14. Did the plaintiff, Durazo, expend any money in putting the pumping plants, or either of them, in good working condition and in complete repair by reason of the failure of the defendant Ayers to keep them in good condition during his occupancy of said premises, and, if so, what amount? Answer: No."

Upon these findings and the findings of the previous trial in May 1917, the court concluded as a matter of law: First, that the plaintiff recover nothing on the second amended complaint; second, that he have judgment against the defendant in the sum of $600, being the value of six cows the defendant had failed to return; third, that the defendant recover from plaintiff the sum of $2,800, value of hay seized by plaintiff, and $75, the value...