Glaspie v. Williams, Civil 3565

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

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 [51 P.2d 255]

[46 Ariz. 382] 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 [46 Ariz. 383] 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, [51 P.2d 256] 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 [46 Ariz. 384] 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 [46 Ariz. 385] 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...