Eshom v. Eshom

• Decision Date: 02 June 1916
• Docket Number: Civil 1493
• Citation: 18 Ariz. 170,157 P. 974
• Parties: JOHN J. ESHOM and O. A. ESHOM, Appellants, v. TULA LEIVAS ESHOM, Appellee
• Court: Arizona Supreme Court

157 P. 974

18 Ariz. 170

JOHN J. ESHOM and O. A. ESHOM, Appellants, v. TULA LEIVAS ESHOM, Appellee

Civil No. 1493

Supreme Court of Arizona

June 2, 1916

APPEAL from a judgment of the Superior Court of the County of Mohave. John A. Ellis, Judge. Reversed and remanded.

Messrs Clark & Clark, for Appellants.

Mr S.D. Stewart and Mr. W. E. Moroney, for Appellee.

OPINION

CUNNINGHAM, J.

The material portions of the complaint upon which this action was tried are as follows:

That the defendants are brothers, both have been engaged for several years in the business of stock-raising, and they are "entirely familiar with each other's business and affairs.

"III that on and prior to the twenty-eighth day of August, 1914 plaintiff and the defendant, John J. Eshom, with the full knowledge of defendant O. A. Eshom were co-owners, in equal shares, of certain range cattle to the number of three hundred head, more or less, and five saddle horses, ranging in the vicinity of Signal and the Big Sandy, in said Mohave county.

"IV. That on or about said twenty-eighth day of August, 1914, the defendants entered into a conspiracy to sell and dispose of said cattle and horses, with the purpose and design of defrauding plaintiff out of her just and legal interest and rights in and to said livestock; and in pursuance of the defendants' said fraudulent purpose and design, and with the intention of putting the same into execution, the said defendant John J. Eshom, in collusion with his said brother, under date of August 28, 1914, executed and delivered to his said brother, the defendant O. A. Eshom, a bill of sale of said cattle and horses, for the purported consideration of $5,000 without plaintiff's knowledge or consent. And almost immediately thereafter, on, to wit, September 18, 1914, the said O. A. Eshom, in accordance with the previous understanding had with his said brother, John J. Eshom, did execute and deliver to one Telly Bland a bill of sale of the same identical livestock, for the real and actual consideration of $9,000; said livestock not having in the meanwhile been gathered on the range by the said defendant O. A. Eshom, nor rebranded in any iron belonging to him.

"V. That said purported sale of livestock from the defendant John J. Eshom to his brother, the defendant O. A. Eshom, and the subsequent sale theeof by the sad O. A. Eshom, to the said Bland, was all with full knowledge of plaintiff's rights and title in and to said livestock, and with fraudulent and collusive purpose and design on the part of defendants, and each of them, of defrauding plaintiff and of depriving plaintiff of her just and lawful share, rights, and interest in and to said livestock. And defendants have failed and refused to account to plaintiff for plaintiff's share of said purchase price, and have refused to pay plaintiff her proper share of said purchase price, or any part thereof, though demand therefor has been made."

The relief demanded is a judgment for $4,000 and interest against the defendants, and general relief.

These facts set forth the right of the plaintiff prima facie to recover a judgment for the value of her share of the property sold to Telly Bland in proportion her share of the property bears to the whole property as measured by the whole purchase price received. The alleged sale by John J. Eshom to O. A. Eshom, in August, of plaintiff's share in the property was a sale by one co-owner of his share, and an attempt made by him to also sell the share of his co-owner. Such attempted sale was without effect of conveying title unless the seller had authority to sell his co-owner's property, or unless the sale was thereafter ratified. The complaint states facts sufficient to constitute a cause of action.

The defendants in their answer to the merits admit the allegations set forth in the first and second paragraphs of the complaint, with the exception that they deny that the defendants are or have been entirely familiar with each other's business and affairs. This is an admission that they are and have been familiar with each other's business and affairs, but not with absolute entirety. Therefore it must be considered that they were familiar with the business herein referred to and charged, unless otherwise denied.

They deny that...