Ross v. Bumstead, 4777

• Decision Date: 28 October 1946
• Docket Number: 4777
• Citation: 65 Ariz. 61,173 P.2d 765
• Parties: ROSS v. BUMSTEAD
• Court: Arizona Supreme Court

173 P.2d 765

65 Ariz. 61

ROSS v. BUMSTEAD

No. 4777

Supreme Court of Arizona

October 28, 1946

Appeal from Superior Court, Maricopa County; Arthur T. LaPrade Judge.

Affirmed.

Snell Strouss & Wilmer, Jennings & Salmon and Ozell M. Trask, all of Phoenix, for appellant.

Stahl &amp Murphy, and Charles A. Carson, all of Phoenix, for appellee.

Farley Superior Judge. Stanford, C. J., and Morgan, J., concurring.

OPINION

Farley, Superior Judge.

On October 21, 1942, the parties entered into a contract whereby the plaintiff agreed to sell to defendant the premises known as the "Arizona Orchard", together with all the improvements thereon, all water and ditch rights, and all personal property on the said premises. The buyer agreed to pay for said property the sum of $ 75,000, payable $ 5,000 upon the execution of the agreement, $ 20,000 when title insurance policy, deed and mortgage were ready for delivery, and the balance in quarterly installments within six years. The contract recited that possession was to be given upon delivery of the title papers and deed, but when so given such possession should relate back to the date of the agreement, for the purpose of adjusting charges against the property and income from it. An inventory was to be taken of all personal property as of the date of the agreement, and one-half of the cost of packing materials and dates was to be added to the purchase price and paid by the buyer. The contract also provided that the vendor would be allowed a reasonable time, not to exceed ninety days, to meet any remedial requirement of the title insurance company, and all taxes, water assessment and insurance premiums were to be prorated as of the date of the agreement.

Following the execution of the agreement the defendant retained an auditor to conduct an inventory of the premises, and on October 29, 1942, eight days after the parties entered into the contract of sale, and while defendant was in Detroit, Michigan, the packing plant and warehouse, together with its contents, were destroyed by fire. The vendee thereupon requested the vendor to make an adjustment for the loss but the vendor refused to do so; whereupon defendant stopped payment on the $ 5,000 check he had given as a deposit and refused to complete the contract.

This action was then filed by the vendor to recover of the defaulting vendee the difference between the selling price as fixed by the contract made by the parties and the actual selling price to a third party. By way of defense defendant pleaded partial failure of consideration. From a judgment in favor of the plaintiff (vendor), defendant has appealed to this court.

Only two assignments of error were raised on appeal so that the issues are relatively simple of determination. Appellant contends that (1) the contract being a conditional one, and the condition not having been satisfied at the time of the destruction of the premises, the risk of loss falls upon the vendor; and (2) even if the contract is unconditional the risk of loss should fall upon the vendor.

In support of his first assignment of error appellant argues that the contract was conditional because the payment of $ 20,000 was not to be made until title insurance policy and deed were ready for delivery; possession was not to be given until delivery of title papers and deed; the seller was to give a warranty deed upon payment of $ 25,000 of the purchase price; and because certain taxes for the year 1942 had not been paid, as well as a mortgage held by the Valley National Bank. An examination of the record fails to sustain appellant's contention that the contract was a conditional one. The findings of the trial court disclose that plaintiff was ready, willing and able to convey good title, and that arrangements had been made to release the mortgage held by the bank. It further appears from the findings that plaintiff was ready and in a position to pay the unpaid taxes on the property, and the parties contemplated that such details would be taken care of by the plaintiff at the time of the execution of the contract.

A conditional contract has been defined as "* * * an executory contract, the performance of which depends on a condition. It is not simply an executory contract, since the latter may be an absolute agreement to do, or not to do, something, but it is a contract whose very existence and performance depends on a contingency and condition." 17 C.J.S., Contracts, § 10, p. 329.

See also 8 Words and Phrases Perm.Ed. p. 415, wherein it is stated that "* * * an executory contract of sale is absolutely to sell...