Ellsworth v. Layton
| Decision Date | 16 December 1964 |
| Docket Number | No. 7256,7256 |
| Citation | 397 P.2d 450,97 Ariz. 115 |
| Parties | Louis Byron ELLSWORTH and Lillian Ellsworth, his wife, Appellants, v. Russ A. LAYTON and Betty Layton, his wife, Appellees. |
| Court | Arizona Supreme Court |
Harold A. Beelar, Globe, and Jack C. Cavness, Phoenix, for appellants.
Wilford R. Richardson, Safford, for appellees.
The parties will be referred to as plaintiffs and defendants as they appeared in the lower court.
This is an appeal by the defendants from a judgment in favor of the plaintiffs after a trial by jury in the Superior Court of Graham County, Arizona. In support of their appeal, the defendants have assigned three purported errors of the trial court, which, stated in general terms, are:
(1) The denial by the trial court of defendants' motion for change of venue based upon the fact that the action was commenced in Graham County although the defendants at that time were residents of Pinal County;
(2) The submission to the jury of the question of damages sustained by the plaintiffs as a result of the interference by the defendants with the shipping of cattle owned by the plaintiffs for the reason that there was no competent evidence submitted on this issue;
(3) The denial of defendants' motion for new trial based upon the contention that there was no competent evidence submitted to the jury to sustain its verdict for damages to the plaintiffs by reason of the interference by the defendants with the shipping of the plaintiffs' cattle.
In considering Assignment of Error No. 1, we are required to test the question of venue by an examination of the complaint and the affidavit filed with the motion for a change of venue. Tribolet v. Fowler, 77 Ariz. 59, 266 P.2d 1088. After the motion for change of venue was filed by the defendants, the plaintiffs filed an amended complaint. For purposes of disposing of Assignment of Error No. 1, we will consider the motion for change of venue as reuning to the amended complaint. The amended complaint states the same purported facts as are set forth in the original complaint, but states three causes of action instead of one cause of action. The defendants' motion for change of venue is predicated upon A.R.S. § 12-401 and the fact that the defendants are residents of Pinal County, Arizona. It assumes that the complaint does not set forth any allegations which bring the action within one of the exceptions to the rule which requires the court to transfer the action to the place of residence of the defendants upon a showing that the defendants are residents of a county other than the one in which the action is pending. It should be pointed out that the action was commenced in Graham County; that the defendants claim, and the complaint alleges, that the defendants are residents of Pinal County; thus, there is no issue of fact raised as to the residence of any party.
An examination of the plaintiffs' amended complaint discloses that the first cause of action describes a contractual relationship between the plaintiffs and the defendants consisting of a pasturing agreement under the terms of which the plaintiffs were to pasture some cattle on the land of the defendants in Cochise County, Arizona, and equally divide the gain in weight of the cattle with the defendants after the deduction for some expenses. After setting forth the contractual relationship, the plaintiffs allege that they have suffered damages in the sum of $2,091.25 by reason of the unlawful acts of the defendants in interfering with the plaintiffs in the shipping and sale of the cattle and seek to recover said damages. In addition, in the same cause of action, the plaintiffs allege that in order to prevent the defendants from carrying out said threat the plaintiffs arranged for the payment to the defendants of the sum of $4,000.00, said sum being paid by the buyer of the cattle out of the proceeds from the sale thereof. The plaintiffs further allege that defendants agreed in writing to repay to the plaintiffs at Safford, Arizona, any part of said sum of $4,000.00 which exceeded the sum computed by multiplying the gain in weight of the cattle by 7 1/2 cents per pound of gain. The defendants allege the amount due from defendants to plaintiffs under said arrangement to be $1,907.48, payable at Safford Arizona, and seek to recover that sum in addition to the sum of $2,091.25 for the interference above referred to.
The second cause of action describes a lease agreement between the plaintiffs and the defendants under the terms of which the plaintiffs were to farm the defendants' land in Cochise County and divide the profits on the crop. Said cause of action alleges that the plaintiffs borrowed funds from the Valley National Bank at Safford, Arizona, and executed a crop and chattel mortgage on the aforesaid crop and on some farm machinery belonging to the plaintiffs; that the defendants had executed a waiver of lien and non-disturbance agreement covering the crop and farm machinery and had delivered the same to the Valley National Bank for the purpose of inducing the loan of money by the Valley National Bank to the plaintiffs; that thereafter the defendants unlawfully took possession of and sold the farm machinery of the plaintiffs. On these allegations, plaintiffs seek to recover damages from the defendants.
The third cause of action seeks to recover the reasonable value of some fertilizer placed on the defendants' land in Cochise County for the benefit of the defendants.
The plaintiffs, in the controverting affidavit to the motion for change of venue seek to come within the exception contained in A.R.S. § 12-401(5) which reads:
'Persons who have contracted in writing to perform an obligation in one county may be sued in such county or where they reside.'
In defendants' affidavit in support of their motion for change of venue, defendants allege:
In the controverting affidavit, the plaintiffs allege that the waiver of lien and non-disturbance agreement was executed, sealed and delivered on the 8th day of May, 1959, at Safford, Graham County, Arizona, and allege that the arrangement for the $4,000.00 payment to the defendants described in the complaint was executed in Cochise County, Arizona.
The trial court was required to determine from the affidavits and the allegations of the amended complaint where any obligation under any contract described in the amended complaint was to be performed. Tribolet v. Fowler, supra.
It will be observed from the resume of the amended complaint above set forth that the third cause of action is an action in quantum meruit, and since such a contract is an implied contract and not a contract in writing...
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