Hall v. Keller
| Decision Date | 29 May 1969 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 9 Ariz.App. 584,455 P.2d 266 |
| Parties | Bill HALL and Fred Ziede, Appellants, v. Adam KELLER, Appellee. 628. |
| Court | Arizona Court of Appeals |
Gorey & Ely, by Joseph M. Bettini, Phoenix, for appellants.
Moore & Moore, by Robert C. Moore, Phoenix, for appellee.
This is an appeal from a judgment entered in favor of plaintiff (appellee) and against defendants (appellants) in an action to recover the unpaid balance of a contract for the sale of certain fixtures and restaurant equipment.
The contract sued upon was dated 18 June, 1962 and was executed by plaintiff, as seller, and defendants, as purchasers of used restaurant equipment situated in a building previously used by plaintiff in the operation of a restaurant business. Shortly before the contract was executed plaintiff moved his restaurant business to a new location. Defendants purchased the equipment for the purpose of resale. The contract provided for a total purchase price of $4,000 of which $1,000 was paid upon execution of the agreement. The remaining $3,000 balance was to be paid 'no later than July 1, 1962.' The contract further provided that defendants would be given a key to the premises wherein the equipment was situated but that the equipment could not be removed until the remaining $3,000 balance was paid, unless otherwise permitted by plaintiff. It was further provided that defendants would remove all of the equipment from the premises by 1 July, 1962.
Immediately after the contract was executed defendants went onto the premises wherein the equipment was situated and commenced selling various items of the equipment. They continued to do so for approximately 30 days, part of which time was beyond the contract date defendants were to have completed full payment of the contract price and were to have removed the equipment from the premises. Approximately 30 days after the contract was executed defendants removed the equipment which they were unable to sell to a warehouse and were still in possession of the equipment at the time of trial. During the period of time defendants were engaged in selling the equipment, payments totaling $991.24 were made to plaintiff, leaving an unpaid balance due under the contract in the amount of $2,008.76. No other payments were made to plaintiff. While defendants were in the process of removing the unsold items of equipment to their warehouse plaintiff made an 'arrangement' with defendants whereby plaintiff was permitted to take a few items of equipment which he needed in his relocated business. By the 'arrangement' plaintiff agreed to take the items 'off of their (defendants) bill.' No fixed amount was agreed upon as to the amount which would be credited against the unpaid contract price owing by defendants. However, evidence adduced during the trial established the value of the equipment taken by plaintiff as being $230. It was also established at the trial that approximately three weeks after execution of the contract defendants had, at the request of plaintiff, undertaken the responsibility for removing a large neon sign on the building wherein the equipment was situated, but the amount to be paid to defendants for removal of the sign was not agreed upon. It was further established that about two years after execution of the original agreement, plaintiff was permitted to take a small electric motor to his business, but again, no amount was agreed upon.
On 26 February, 1964, plaintiff commenced an action against defendants to recover $1700, which amount was alleged to be due under the contract. The case was tried to the court sitting without a jury and on 18 January, 1967, judgment was entered in favor of plaintiff for $1250 plus costs and interest. Defendants thereafter moved for a new trial and to amend or alter the judgment, the motions were denied and defendants appealed.
Defendants first contend that plaintiff was not entitled to judgment for the unpaid balance of the contract price bacause title to the equipment never passed to defendants. In support of this contention defendants urge that the contractual provision that the equipment could not be removed until the contract price was paid precluded title from passing since full payment was never made. Therefore, defendants argue, an action for the price will not lie under A.R.S. § 44--263, subsec. A.
A.R.S. § 44--263 designates an action for the price of goods sold as one of the remedies available to a seller under the Uniform Sales Act. Subsection A thereof provides:
A.R.S. § 44--218, which is also a provision of the Uniform Sales Act, states that property in goods passes to the buyer when the parties so intend. Section B of A.R.S. § 44--218 sets forth the factors to be considered in determining what the parties intended:
'For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case.'
Although the above...
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Thermo-Kinetic Corp. v. Allen
...94, 417 P.2d 728 (1966). However, the burden of proving such modification is on the one claiming modification. Hall v. Keller, 9 Ariz.App. 584, 455 P.2d 266 (1969). Suffice it to say that the defendant did not meet its burden in this regard. We summarily reject the defendant's contention th......
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Ray Suiter & Son Const. Co. v. Allied Contract Buyers
...this issue in the trial court, may not now argue the same on appeal. Rule 43(h), Ariz.Rules of Div. Proc., 16 A.R.S.; Hall v. Keller, 9 Ariz.App. 584, 455 P.2d 266 (1969). Suiter next argues that since Allied was the recorded title holder on the property on the date of completion of the pro......