Mosher v. Rowe

• Decision Date: 19 April 1924
• Docket Number: Civil 2100
• Parties: HATTIE L. MOSHER, Appellant, v. FRANK F. ROWE, Appellee
• Court: Arizona Supreme Court

224 P. 1065

26 Ariz. 307

HATTIE L. MOSHER, Appellant, v. FRANK F. ROWE, Appellee

Civil No. 2100

Supreme Court of Arizona

April 19, 1924

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman Judge. Affirmed.

Mr. J B. Woodward, for Appellant.

Messrs Clark & Clark and Mr. H. H. Miller, for Appellee.

OPINION

GIBBONS, Superior Judge.

This is an action in replevin in which appellee, plaintiff below seeks to resume possession of three automobiles that had been taken into possession by appellant, defendant below, and held by her as security for the payment of certain rents alleged to be due her from appellee. A trial was had to the court sitting without a jury, in which judgment was rendered in favor of plaintiff, appellee, granting him possession of said automobiles. Defendant moved for a new trial which motion was denied. The appeal is taken from the judgment and the order denying the motion for new trial.

Plaintiff, Frank F. Rowe, had been a lessee of defendant, Hattie L. Mosher, from July 1, 1919, to July 1, 1920, under a written lease of a certain salesroom situated in a building at 305 North Central Avenue in Phoenix, Arizona, and had occupied and used said salesroom for the purpose of carrying on an automobile sales business. From July 1, 1920, until April 1, 1921, plaintiff had continued to so use and occupy said salesroom under an oral lease at a monthly rental of $160. About April 1, 1921, plaintiff through his agent, Wold, paid the rent for April, 1921, and vacated the salesroom, leaving same in possession of two other parties, Wold and Williams, who occupied said premises until about April 15, 1921, when they vacated the same leaving no tenant in charge. There were left in said salesroom by plaintiff three Elcar automobiles in possession of Woldf and Williams supposedly for sale, and when said parties vacated the salesroom these three automobiles remained there and were taken into possession by defendant about April 15, 1921, along with other goods consisting of office furniture and equipment to pay two months' rent claimed to be due for the months of May and June.

Appellant contends that the contract of lease for the salesroom in question was for one year. Appellee denies this contention and claims that it was a lease of the premises from month to month at a fixed rental of $160 per month.

It is undisputed that the rent was paid for the month of April, and further that appellant seized the automobiles about April 15, 1921.

Appellant urges this appeal on two grounds: First, that no demand was made for the return of these cars; second, that the court erred in finding appellee's tenancy ceased April 30th and that appellant had no lien upon or rightful possession of said property. These assignments will be considered together for the reason that...