International Harvester Company of America v. Davotvich
| Decision Date | 05 August 1933 |
| Docket Number | Civil 3292 |
| Parties | INTERNATIONAL HARVESTER COMPANY OF AMERICA, a Corporation, Appellant, v. NICK DAVOTVICH, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pinal. E. L. Green, Judge. Judgment affirmed.
Mr. M L. Ollerton, for Appellant.
Messrs McFarland & Fullbright for Appellee.
This is an action in replevin instituted by the International Harvester Company, a corporation, against Peter Dimich and Nick Davotvich to gain possession of the following farm machinery sold the latter by the O.S. Stapley Company under an agreement by which the seller, or its assigns, retained title until the full amount of the purchase price was paid namely: One Farmall tractor, No. QC40617, one No 1 Farmall middle buster, one two-row Farmall cultivator, and one Farmall tractor, No. QC55185.
At the time of the sale of the first three implements, viz., January 15, 1929, the defendants, who were partners in farming operations, executed four promissory notes in favor of the O.S. Stapley Company bearing eight per cent. interest until maturity and ten per cent. thereafter. Two of these notes were in the sum of $345 each, were given for balance due on the Farmall No. QC40617 and matured on June 15th and October 1st, 1929, respectively. The other two were in the sum of $85.50 each, bore the same interest as the first two and were given for a No. 1 Farmall middle buster and a two-row Farmall cultivator. They likewise matured, one on June 15th and the other on October 1st, 1929. Each of these notes provided that until they were paid title to the implements for which they were given should remain in the payee, owner of holder, and should default be made in the payment thereof, the owner or holder of the notes could take possession of the implements and retain them.
About fourteen months following this transaction, to wit, on February 27, 1930, the defendants executed a note for $560, payable to the O.S. Stapley Company October 1, 1930, to cover the deferred payment on a second Farmall tractor, No. QC55185, the same provisions as to interest, title and default that were contained in the other four notes being placed therein.
Immediately after the execution and delivery of these notes they were indorsed, sold, assigned and delivered to the plaintiff, the International Harvester Company of America, who then became and has since remained the owner and holder of them and of the legal title to the implements for which they were given. They bore also an indorsement by the O.S. Stapley Company guaranteeing their payment.
When the complaint was filed in January, 1932, payments amounting to $650 of the $861 principal which the four notes dated january 15, 1929, totaled, had been indorsed on them, and a payment of $100 on the principal of the note for $560 dated February 27, 1930, was also indorsed on it. According to the indorsements these notes bore, none of them had then been fully satisfied, so the complaint alleged that a portion of the purchase pice for each of the implements was due and unpaid and that under the terms of the notes the plaintiff was entitled to the possession thereof, but that the defendants had wrongfully withheld this and still refused to surrender it, notwithstanding the plaintiff had made demand therefor upon them.
To this complaint the defendant, Nick Davotvich, who prior to the institution of the action had acquired the interest of his partner, Dimich, demurred generally, and answered further admitting the purchase of the implements and the execution and delivery of the notes, but alleged that he had paid those dated January 15, 1929, in full, the final payment thereon having been made on February 12, 1931; that following this the plaintiff caused a writ of replevin to issue to the sheriff, commanding him to seize the implements, and this was done; that since then the plaintiff has wrongfully withheld and detained the same; that the reasonable value of the property wrongfully and maliciously taken and detained was $800; that the damage caused the defendant by reason of such wrongful taking and detention was $1,200. The substance of the answer was set up also by way of a cross-complaint.
The jury by its verdict found that the plaintiff was entitled to the second Farmall tractor, No. QC55185; that the defendant was the owner of and entitled to the possession of the first Farmall tractor, No.QC40617, the Farmall middle buster and the Farmall two-row cultivator; that the value of the three last-named implements was $500; and that the defendant was damaged by the plaintiff in the sum of $350 as a result of its detention of his property.
Following the rendition of the verdict the defendant elected to accept, in lieu of the three implements the jury found to be his, the $500 fixed by it as their value. Thereupon, the court rendered judgment in favor of the defendant in the sum of $850 and costs, and this is the judgment the plaintiff has brought here for review.
The several assignments are discussed under two propositions, the first of which is that the defendant did not produce evidence sufficiently substantial to justify the verdict that he had paid the title-retaining notes covering the implements involved, and the other, that the admission of certain evidence over appellant's objections was prejudicial error. In urging the first proposition appellant, after calling attention to the rule so often announced by this court, that it will not pass on the weight of the testimony or disturb the verdict or findings of the trial court when the evidence is in conflict and that in support of the judgment or the findings is of a substantial nature (First Baptist Church v. Connor, 30 ariz. 234, 245 P. 932; Young Mines Co., Ltd., v. Citizens' State Bank, 37 Ariz. 521, 296 P. 247; Hagan et al. v. Cosper, 37 Ariz. 209, 292 P. 1020), contends that the record discloses a lack of any substantial or reasonable evidence upholding the jury's conclusion that appellee had paid the notes in full. The defendant having offered what he claims to be substantial evidence in support of his allegation of payment, a brief statement of the testimony on that point becomes necessary.
The notes, as we have seen, were assigned to the appellant immediately after the sale, but appellee, notwithstanding, made all his payments, except one for $100, to the payee in the notes from whom he had purchased the implements, and that company forwarded the money to the appellant at its Los Angeles office. Upon receiving it there the International Harvester Company entered it on a ledger and later indorsed it on one of the notes, which show payments totaling the following amounts: $345, on the note for that sum, due June 15, 1929; $255, on the second one for that sum, due October 1, 1929; $50, on the one for $85.50, due June 15, 1929; nothing, on the other one for $85.50, due October 1, 1929; $100, on the one for $560, due October 1, 1930. This left unpaid on the four notes dated January 15, 1929, $211 principal and $118.11 interest, and on the one dated February 27, 1929, $460 principal and $109.15 interest, and the testimony in behalf of appellant was that nothing had been paid on the notes other than that shown by the indorsements. It introduced eight credit memorandums which compared with these in amounts, though the dates differed somewhat, but this was accounted for by one of appellant's witnesses who stated that it took several days for the memorandums to reach Los Angeles, where they were entered in the ledger and later indorsed on the notes as of that date.
Appellee testified, however, that he paid the four notes dated January 15, 1929, in full and that he made all the payments to the payee, the O. S. Stapley Company, at its Chandler store, except the last one, $250.05, which he paid at its Phoenix store. In substantiation of this statement he produced six receipts from that company showing payments by him and Dimich totaling $550 and one signed by G. R. Armstrong, manager of the Grasty Implement Company at Coolidge, stating "On I.H.C. note," $100, and then testified that he was not given receipts for every payment and that his partner, Dimich, had one or two. He called attention also to the fact that there is a difference in the wording and the dates of some of the memorandum receipts introduced by appellant and those given appellee to cover the same payments, showing that the latter are not carbon copies. This discrepancy, however, was explained by the manager of the Chandler store of that company, who sold the implements and received the payments, by stating that receipts given the purchaser were ordinarily carbon copies though they were not so in every instance due to the fact that a carbon in the receipt book or pad was not always at hand.
Appellee places particular stress on the payment of $250.05 on February 12, 1931, which, he said, satisfied the indebtedness in full. He testified:
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...partial payment. A question of payment is Generally one of fact, and is to be decided by the trier of fact. International Harvester Co. v. Davotvich,42 Ariz. 249, 24 P.2d 375 (1933), and Albert Steinfeld & Co. v. Wing Wong,14 Ariz. 336, 128 P. 354 (1912). However, the facts of the instant c......