Glaspie v. Williams, Civil 3565

• Decision Date: 18 November 1935
• Docket Number: Civil 3565
• Citation: 51 P.2d 254,46 Ariz. 381
• Parties: T. H. B. GLASPIE, Appellant, v. BUSTER WILLIAMS, Appellee
• Court: Arizona Supreme Court

51 P.2d 254

46 Ariz. 381

T. H. B. GLASPIE, Appellant, v. BUSTER WILLIAMS, Appellee

Civil No. 3565

Supreme Court of Arizona

November 18, 1935

APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Judgment affirmed.

Mr. D V. Mulhern and Mr. B. H. Gibbs, for Appellant.

Mr Walter D. Moore and Mr. Frederic A. Shaffer, for Appellee.

OPINION

LOCKWOOD, C.J.

Buster Williams, hereinafter called plaintiff, recovered judgment against T. H. B. Glaspie, hereinafter called defendant, in the superior court of Gila county, and, after the usual motion for new trial was overruled, defendant has appealed.

There are some twenty assignments of error which present four propositions of law which we shall consider in their order. That we may do this intelligently it is necessary first to state the facts of the case. It was tried to the court sitting without a jury, and some fifteen findings of fact were made. In accordance with our invariable rule, we must assume that these findings, so far as they are sustained by any competent and reasonable testimony, represent the true facts of the case. We have read the transcript of evidence carefully, and, taking it as strongly in support of the findings as it may reasonably be construed, the facts of the case may be stated in a narrative form as follows:

On the 2d of February, 1932, defendant was the owner of 1,545 head of angora goats which were on the open range in Pima county. On that date he entered into an oral agreement with plaintiff and one Robert L. Johnston, whose interest in the subject-matter of this action eventually passed to plaintiff for the purchase and sale of the goats above described. Although Johnston's interest was not transferred to plaintiff until just before this suit was brought, we shall hereafter refer to the latter only as the real party in interest, except as necessary otherwise for the sake of clarity. Under the terms of the agreement, the purchase price was $4,635, to be paid to the defendant as follows: (a) $2,500 by the conveyance to him of certain real estate and personal property in Gila county; and (b) the balance by the delivery to him of a promissory note executed by plaintiff and Johnston, dated February 2, 1933, and secured by a chattel mortgage on the goats purchased, which mortgage, however, did not cover either the mohair to be cut from them or the increase thereof. Defendant agreed that, upon the execution and delivery of proper conveyances to the real and personal property, above described, and the execution and delivery of the note and mortgage, he would make and deliver to plaintiff and Johnston a good and sufficient bill of sale for the goats above described, and for the brand with which they were marked; said brand being duly recorded in the office of the livestock sanitary board in the name of defendant. In pursuance of said agreement, the property in Gila county was properly conveyed to defendant and the deed to the real estate by him recorded. The note was executed according to the agreement, together with the chattel mortgage above referred to. This note reads as follows:

"$2,135.00

Winkelman, Ariz.,

"Feb. 2, 1932.

"On or before 18 months after date, for value received we promise to pay to the order of T. H. B. Glaspie Two Thousand One Hundred Thirty-five & no/100 Dollars, at the office of Sam M. Watkins, Winkelman, Ariz., with interest after date at the rate of eight per cent per annum and if not paid at maturity and collected by an attorney or by legal proceedings, an additional sum of ten per cent on the amount of this note as attorney's fees.

"No. 1. Due August 3, 1933."

The chattel mortgage was in the usual form, but, when it referred to the note, contained this provision:

"... According to the conditions of one certain promissory note, executed by Buster Williams and Robert L. Johnston, payable to T. H. B. Glaspie, % Sam M. Watkins at Winkelman, Arizona, viz:

"$2,135.00 Dated 2-3-32 due 8-2-33 with interest at 8 per cent per annum, until paid.

"Payments of at least $200.00 to be made on this note twice per each year or at time of shearing said goats. [Italics ours.]

"Then these presents to be void and of no effect. But if default shall be made in the payment of said sum of money, or interest thereon, at the time said note shall become due, or if any attempt shall be made to remove, dispose of or injure said property or any part thereof by said parties of the first part, or any other person, or if said parties of the first part does not take proper care of said property, or if said party of the second part shall at any time deem said goats insecure, then, thereupon and thereafter it shall be lawful, and the said first parties hereby authorize the said second party his heirs or assigns, or his authorized agent, to take said property wherever the same may be found, and hold or sell and dispose of the same...."

Thereupon plaintiff delivered the note and mortgage to defendant, but, notwithstanding his agreement in regard to the bill of sale, the latter refused to deliver it to plaintiff, although repeated demands were made therefor. Physical possession of the goats, however, was given plaintiff, and he proceeded to care for them until they were taken from his possession in August, 1932.

In March, 1932, plaintiff caused the goats to be sheared and the mohair to be stored, but defendant, claiming the ownership thereof, received the use and benefit of all the proceeds derived from its sale. In the early part of June, 1932, defendant went to the camp of plaintiff, and, against the will and consent of the latter, proceeded to brand all the increase of the goats between February and June in his own brand, although plaintiff had previously marked them differently, in order to distinguish them from the goats covered by the agreement of sale and the chattel mortgage. Thereafter, and on the 13th of August, defendant took possession of the goats in question, together with their increase, against the will of plaintiff, and sold them to one Robert Collie. Plaintiff had worked for four and one-half months and Johnston for six months and eleven days in caring for the goats before they were taken possession of by defendant, and the evidence showed that the reasonable value of labor of that kind was $100 per month.

Some time after the foregoing proceedings plaintiff filed this suit. There were many pleadings by both parties, but the matter finally went to trial on the second amended complaint and a counterclaim and cross-complaint; judgment being finally rendered in favor of plaintiff for a conveyance to him of the property which defendant had received under the agreement, for a cancellation of the note in question, and for $1,286.04 damages. Thereafter plaintiff remitted the sum of $543.33 from the judgment, and, the motion for new trial being overruled, this appeal was taken.

The first question for our consideration is whether the complaint was obnoxious to a demurrer on the ground that it united a cause of action on contract and a cause of action in tort. It is the contention of defendant that it shows on its face that it attempts to set up an action in conversion and also one for a rescission of a contract. We have examined the complaint carefully. It is of considerable length, and we consider it unnecessary to set it forth in full, as our ruling on this particular point would be of no value as a precedent in any other proceeding. It is sufficient for us to say that we think it alleges (a) an oral agreement that plaintiff and defendant should each do certain things, one in consideration of the other; (b) full performance of the agreement by plaintiff in so far as he had been required to perform up to August 13, 1932; (c) a failure of defendant to do all the material things which under the agreement he should have done before that date, and a repudiation of the contract...