Hoover v. Odle

• Decision Date: 06 December 1926
• Docket Number: Civil 2454
• Parties: JOHN FRED HOOVER and CORA HOOVER, Appellants, v. L. L. ODLE, SUSIE ODLE, and LOSON ODLE, Jr., Appellees
• Court: Arizona Supreme Court

250 P. 993

31 Ariz. 147

JOHN FRED HOOVER and CORA HOOVER, Appellants, v. L. L. ODLE, SUSIE ODLE, and LOSON ODLE, Jr., Appellees

Civil No. 2454

Supreme Court of Arizona

December 6, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Affirmed.

Mr. W T. Timmons, Mr. Thomas J. Croaff and Mr. Earl Anderson, for Appellants.

Mr Thomas A. Flynn, Mr. J. W. Faulkner and Mr. James P. Lavin for Appellees.

OPINION

LOCKWOOD, J.

John Fred Hoover and Cora Hoover, his wife, hereinafter called plaintiffs, brought suit against L. L. Odle, Susie Odle, his wife, and Loson Odle, Jr., hereinafter called defendants, for the possession of certain real estate located in Gila Bend Arizona, and for damages for the withholding of the possession from plaintiffs. Defendants answered, setting up, in substance, that they were rightfully in possession under a certain agreement with plaintiffs, whom they admitted to be the holders of the legal title of the premises. The case was tried before the court without a jury, and judgment rendered in favor of defendants. From this judgment the plaintiffs have appealed.

No written findings of fact were filed by the trial court, and therefore, under our familiar doctrine, we are bound to presume that every finding necessary to support the judgment, and which could reasonably be drawn from the evidence, was made. Thomas v. Newcomb, 26 Ariz. 47, 221 P. 226; Mulrein Plumb. Sup. Co. v. Walsh, 26 Ariz. 152, 222 P. 1046; Roden v. Roden, 29 Ariz. 398, 242 P. 337.

The evidence, following this rule, shows the facts to be as follows: In December, 1923, plaintiffs, being the owners of the real estate in question, entered into an agreement with defendant Susie Odle and one J. Meyers, whereby a tourist camp was to be erected upon the premises and operated in connection with a string of tourist camps along the southern highway through California, Arizona and New Mexico. It was agreed that Susie Odle was to supply the money to improve the property, plaintiffs were to furnish the land, and Meyers was to look after the construction and operation of the camp. After deducting from the receipts of operation the necessary costs of running the business, Mrs. Odle was to be reimbursed for all the money she had expended, Hoover was to be paid an agreed price for his property, and thereafter Meyers, Hoover and Mrs. Odle were to have an equal interest in the premises as improved. This agreement was oral, as, although Hoover was frequently requested to put it in writing, it was never done. Mrs. Odle immediately commenced improving the premises, as agreed, and some eleven tourist cottages, a store and a restaurant were built thereon, being practically completed in the month of March, 1924. On the second day of February of that year, defendant L. L. Odle, acting for his wife, went to Hoover and asked him to complete the papers covering their agreement. After some discussion, Hoover stated that, instead of going ahead along the lines of the oral agreement, he would sell to Mrs. Odle a certain portion of the real estate, being that upon which the improvements had been placed at her expense, for seven thousand dollars. Thereupon the following agreement was written by Hoover and executed by plaintiffs and Mrs. Odle:

"Agreement or Contract.

"This agreement, made this second day of February, A.D. 1924, between John Fred Hoover and Cora Hoover (his wife) of Gila Bend, Arizona, the parties of the first part, and Susie Odle, Yuma, Arizona, the party of the second part, witnesseth: That the said parties of the first part, in consideration of the covenants, promises, and agreements on the part of the said party of the second part, hereinafter contained, hereby covenants, promises and agrees to and with the said party of the second part that the said parties of the first part will sell to the said party of the second part six lots, to wit: 150 feet square and more particularly six lots being on the south half of the west half of block 9, in Gila Bend, Arizona, according to the map and plat of said Gila Bend townsite on file in the office of the recorder of Maricopa county at Phoenix, Arizona.

"It is agreed that the parties of the first part will give good and sufficient deed with warranty clause or pay $10,000 damages.

"And the said party of the second part, in consideration of the said covenants, promises, and agreements on the part of the said parties of the first part, hereinafter contained, covenants, promises, and agrees to and with the said parties of the first part that the said party of the second part will pay unto the said parties of the first part the sum of seven thousand dollars, with interest at the rate of 8 per cent. per annum, on or before February 2nd, 1930.

"It is hereby agreed that the interest will be paid annually and that the first payment of interest is payable February 2nd, 1926.

"And for the true and faithful performance of all and every of the said covenants, promises, and agreements the said parties to these presents bind themselves, and each unto the other, in the penal sum of all improvements put up now or that may be put on the property, of the United States of America, as fixed, settled, and liquidated damages to be paid by the failing part none to the other, . . . heirs or assigns.

"In witness whereof, the said parties to these premises have hereunto set their hands and seals this 2nd day of February, A.D. 1924.

"J. F. HOOVER. [Seal.]

"C. HOOVER. [Seal.]

"SUSIE ODLE. [Seal.]

"Signed, sealed, and delivered in the presence of Loson L. Odle."

There was a small adobe house standing on the premises covered by the written agreement, which had been erected by plaintiffs some time previous to the oral agreement, and which was then rented. Hoover, in company with Odle, went to the tenants of the adobe house and told them that he had sold the place and that from that time on the rents were to be paid to Mrs. Odle.

Some nine days later Hoover wrote Odle that he understood the latter had collected the rent from the tenants of the adobe house, but that it had not been turned over as per agreement and asking that Odle send him the money and arrange for it to be paid over each month. Thereafter, and some time in May, plaintiffs forcibly took possession of the premises and held them until the last of July, when they were...