Maricopa Partnerships, Inc. v. Petyak, 2

• Court: Court of Appeals of Arizona
• Writing for the Court: HATHAWAY; ROLL, P.J., and HOWARD
• Citation: 163 Ariz. 624,790 P.2d 279
• Parties: The MARICOPA PARTNERSHIPS, INC., an Arizona corporation, Plaintiff/Appellee, v. Edward PETYAK and Jane Doe Petyak, Defendants/Appellants. 89-0122.
• Docket Number: No. 2,CA-CV,2
• Decision Date: 19 December 1989

Page 279

790 P.2d 279 163 Ariz. 624 The MARICOPA PARTNERSHIPS, INC., an Arizona corporation, Plaintiff/Appellee,
v.
Edward PETYAK and Jane Doe Petyak, Defendants/Appellants. No. 2 CA-CV 89-0122. Court of Appeals of Arizona,
Division 2, Department A. Dec. 19, 1989.
Review Denied May 1, 1990. ^*

Winston & Strawn by M. Robert Dauber and Daniel Maynard, Phoenix, for plaintiff/appellee.

Craig Mehrens, P.A. by Craig Mehrens and Amy Wilemon, Paul G. Ulrich, Phoenix, for defendants/appellants.

OPINION

HATHAWAY, Judge.

Edward and Jane Doe Petyak (appellants) appeal from a judgment in the amount of $29,800 entered in favor of The Maricopa Partnerships, Inc., (appellee) following a jury verdict. The sole issue on appeal is whether the trial court's instruction on the agency theory was an incorrect statement of the law constituting reversible error. Because we conclude that it was, we reverse and remand.

FACTS

Appellant Edward Petyak, an American Airlines pilot, was also engaged in importing and reselling luxury cars. He met with appellee in the spring of 1985. Following a discussion of specifications, they orally agreed that appellant would locate and import a new Jaguar automobile for appellee. On June 4, 1985, appellee gave appellant a $2,500 check as a downpayment. The vehicle was to be imported from Europe and delivered to appellee after completion of modifications to meet U.S. regulations.

There were delays in importing the Jaguar over a six-month period of time. Appellant advised appellee of the problems and indicated it might be another three to four months before the Jaguar would arrive, if at all.

Appellant apparently advised that he had seen newspaper ads in Dallas showing Jaguars

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[163 Ariz. 625] available at similar prices. It is disputed whether appellee or appellant initially suggested pursuing the Dallas ads instead of waiting to import directly from Europe. It is undisputed that appellant agreed to look into the Dallas ads on behalf of appellee.

Appellant visited the Dallas dealership, Gerimco, and found a vehicle meeting appellee's specifications. He telephoned appellee from the dealership and negotiated the price and modifications between appellee and the dealer over the phone. It was agreed at that time that the purchase price would be $29,800, including modifications. Appellee and appellant agreed that Gerimco would ship the car to appellee in Phoenix. Appellant agreed to write his personal check for the purchase price and within several days appellee delivered a check to appellant for the purchase price, less the $2,500 deposit already paid. No profit to appellant was contemplated under these terms.

Appellant's cancelled check to Gerimco for $29,800 was admitted in evidence. Appellee's testimony both on direct and cross-examination was that the dealer, Gerimco, not appellant, was to deliver the car to Phoenix. The Jaguar never arrived in Phoenix. Upon inquiry, appellant learned that the dealer absconded with the money and the Texas bank which held the lien on the Jaguar repossessed it. Appellee demanded a refund of the purchase price which appellant refused to pay. Appellee then filed suit and following a three-day trial, the case went to the jury on two theories. Under the first theory, appellee alleged breach of a sales contract. Under the second, appellee alleged that appellant breached an agency agreement. The jury was instructed on both theories. On the agency issue, the court instructed:

In deciding that issue, you must decide the extent of the agent's duties to the principal as determined by the terms of the agreement...