Lazear v. Pendergrass, Civil 3064

• Decision Date: 04 November 1931
• Docket Number: Civil 3064
• Citation: 39 Ariz. 111,4 P.2d 386
• Parties: CHARLES LAZEAR, Appellant, v. P. P. PENDERGRASS and MABEL PENDERGRASS, His Wife, MAX LUKE and JOHN LUKE, Her Husband, Appellees
• Court: Arizona Supreme Court

4 P.2d 386

39 Ariz. 111

CHARLES LAZEAR, Appellant, v. P. P. PENDERGRASS and MABEL PENDERGRASS, His Wife, MAX LUKE and JOHN LUKE, Her Husband, Appellees

Civil No. 3064

Supreme Court of Arizona

November 4, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions to grant a new trial.

Messrs McNabb & De Camp, for Appellant.

Mr Thorwald Larson, Mr. Henderson Stockton and Mr. Thomas A Flynn, for Appellees.

OPINION

ROSS, J.

This is an action in conversion for the value of a cotton crop grown on the premises of defendants Pendergrass during the year 1928 by plaintiff Lazear.

After plaintiff had closed his case, the court granted defendants' motion for a directed verdict, and, from such order, plaintiff has appealed.

The complaint, in substance, alleges that prior to March 23 1928, defendants Pendergrass were negotiating the sale of the premises to one Ella Stevens, and, during such negotiations, authorized such prospective buyer to lease the premises so that they could be cultivated during the year 1928, and that defendant P. P. Pendergrass authorized the agent of said Ella Stevens to lease said land on such terms as he was leasing other lands, or on such terms as he could secure; that, in pursuance of such authority, he did lease the land to E. B. Holder, L. B. Holder and plaintiff, and included the same in a lease from Edwin Roland and Alma Roland of certain of their lands to the Holders and plaintiff; that the terms and conditions of the lease were that the lessee should take possession of the land, clear, level and plant the same to cotton; the lessees to pay for seed and water, the expense of picking the cotton crop to be borne equally, and thereafter the crop equally divided, the lessors agreeing to repay lessees all expense of water and seed and to pay them $5 per acre for clearing and leveling the land.

That the Holders quit and relinquished to plaintiff all of their interest in lease, and plaintiff cleared and leveled the land, planted it to cotton, and cultivated same during the year 1928.

That the sale of the land to Ella Stevens was not consummated.

That in October, 1928, defendants P. P. Pendergrass and John Luke forcibly took possession of the premises and appropriated the cotton crop to their own use, to plaintiff's damage in the sum of $3,500, the value of the cotton.

Defendants' answer was a denial of all of the allegations of the complaint.

The court granted the motion for a directed verdict, stating: "I am satisfied that the plaintiff hasn't made out the case as set up in the complaint." The motion was granted, therefore, on the grounds of variance of allegations and proof, or for failure of proof. Such ruling did not question the sufficiency of the complaint to state a cause of action. If therefore the complaint states a cause of action, and we think it does, and the evidence, considered in its most favorable light, supports such cause, it was error to take the case from the jury.

The motion for directed verdict does not question the sufficiency of the pleadings, but raises merely the question of the legal sufficiency of the evidence to sustain a verdict against the moving party. Kroeger v. Twin Buttes R. Co., 14 Ariz. 269, Ann. Cas. 1914A 1289, 127 P. 735. It is also the rule that a motion for a directed verdict admits the truth of whatever competent evidence the opposing party has introduced, viewed in the strongest light against the movant. Arizona Binghampton Copper Co. v. Dickson, 22 Ariz. 163, 44 A.L.R. 881, 195 P. 538; Arizona Power Co. v. Hayes, 24 Ariz. 322, 209 P. 280; Southwest Cotton Co. v. Pope, 25 Ariz. 364, 218 Pac. 152; Cadle v. Helfrich, 36 Ariz. 390, 286 P. 186.

We have carefully read the evidence, and find that it supports in a very substantial way all the material allegations of the complaint. One feature thereof given by defendant P. P. Pendergrass, who was called by the plaintiff for cross-examination, was to the effect that in May, 1928, he had a conversation with Mr. Holder (one of the lessees), who informed him that Mr. Stevens (the agent of Ella Stevens) had told him to go ahead and clear the land and work it; that he was the owner of it; that they were working it on shares; and that Stevens was to pay them $5 per acre for clearing the land. He said that at or near that time he prepared a lease for the Holders and the plaintiff to sign, in which it was agreed that the cotton grown should be divided equally, the owners of the land to pay $5 per acre for clearing and leveling, and one-half the picking and ginning expenses, and for the water and seed. He also said:

"Mr. Holder come up to town and we fixed up the contract and we paid him $125.00 on this clearing the land and afterwards we took the contract down, we agreed to make the contract and he recognized us as the owners."

It was also shown that defendant P. P. Pendergrass had, in the fall of 1927, sold, or agreed in writing to sell, the premises to Ella Stevens for a valuable consideration and had accepted a down payment thereon of $100; that the purchaser...