Simpson v. Securities Service Corporation, a Corp., Civil 3678

• Citation: 56 P.2d 1044,47 Ariz. 464
• Decision Date: 13 April 1936
• Docket Number: Civil 3678
• Parties: R. H. SIMPSON, Appellant, v. SECURITIES SERVICE CORPORATION, a Corporation, Appellee
• Court: Supreme Court of Arizona

56 P.2d 1044

47 Ariz. 464

R. H. SIMPSON, Appellant, v. SECURITIES SERVICE CORPORATION, a Corporation, Appellee

Civil No. 3678

Supreme Court of Arizona

April 13, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Messrs Cox & Moore, for Appellant.

Mr. G W. Shute, for Appellee.

OPINION

ROSS J.

This plaintiff, R. H. Simpson, commenced this action to recover from defendant, Securities Service Corporation, the sum of $122,200.98, alleging he had paid said sum to defendant under compulsion and from fear of losing 2,300 shares of J. C Penney Company stock, of great value, that he had placed with the defendant as collateral security to certain obligations he had contracted with defendant. The defendant filed a general demurrer and a general denial. The case proceeded to trial before a jury. At the close of plaintiff's case, the court instructed the jury to return a verdict for defendant. From this ruling the plaintiff appeals contending the court erred.

The contracts, the basis of plaintiff's cause of action, were all written and are set out in the complaint. Construing or interpreting these the court hled, in effect, that plaintiff stated no cause of action. Plaintiff contends the contracts are ambiguous and that their meaning under the evidence was a question for the jury.

According to the complaint, during the early part of 1929 plaintiff entered into seven contracts with the Arizona Investment Service, of Phoenix, alleged to be the agent of and acting for the defendant, to purchase common stock of the J. C. Penney Company, at the price and on the terms therein mentined, and deposited with such agent of defendant 2,300 shares of the common stock of the J. C. Penney Company as collateral for the payment of balances of purchase price. The contracts consist of two instruments and since they are the same in each transaction or purchase we here set out the instruments evidencing only one of such contracts.One of such instruments is called the "Purchase Contract" and is in words and figures as follows:

"To Arizona Investment Service,

22 West Monore,

Phoenix, Airzona.

"Date 3/5/29.

"(a) to be held as collateral in lieu of first payment.

"I herewith hand you

"(b) ($ ) cash to be applied as first payment on the following:

200 shares of J. C. Penney Common 'When issued' stock at $139 and in payment of your Investment Counsel fee, all in accordance with your investment Savings Plan, the terms of which are set forth on the reverse side hereof, and which constitute this agreement.

"The purchaser is to complete payment for the above mentioned securities in ten equal installments plus 7% interest on deferred payments. Installments are to be due and payable every ninety (90) days from the date hereof. Interest or dividends paid on said securities shall be credited to the account of purchaser pursuant to the terms of this agreement.

"It is further agreed that purchaser may, at his option, complete payments at an earlier date.

"Name R. H. SIMPSON

"Purchaser.

"Flagstaff."

The other instrument reads:

"Amended Certificate.

"ARIZONA INVESTMENT SERVICE. "Certificate.

"No. 5966-329.

"THIS IS TO CERTIFT that the ARIZONA INVESTMENT SERVICE had this 5th day of March, 1929, contracted with R. H. Simpson, Flagstaff, Arizona, to sell and deliver the following named security:

"200 shares of J. C. Penney Stock at $139.00 per share.

(New) Common

"In addition to the above amount the purchaser has agreed to pay to ARIZONA INVESTMENT SERVICE a sum equal to ten per cent (10%) of the deferred balance, not to exceed $3.00 per share, as a charge for the investment service.

"Using part 2300 shares J. C. Penney Co. as collateral for $14,422.00, leaving a balance, including the investment service charge of $14,445.99.

"This transaction is made according to the investment service contract, on the investment service plan, in conformity with the terms and conditions contained in the agreement this day executed, which calls for completion of payments of said balance above mentioned in ten (10) equal installments of $1,444.59 each, together with interest on the deferred balance due for the cost of stock at the rate of seven per cent (7%) per annum, each installment to become due every ninety days from the above date.

"It is further agreed that R. H. Simpson may at his option complete payments at an earlier date.

"SPECIAL CONTRACT: No further installment payments required except periodic payment of interest.

"ARIZONA INVESTMENT SERVICE.

"By A. F. McDUFFIE."

These instruments and the printed indorsements thereon constitute the contract. The Purchase Constract is an offer by plaintiff to buy and the other is in the nature of an acceptance of the offer, a receipt for part payment of the purchase price, and the acceptance of 2,300 shares of J.C. Penney Company stock as collateral for balance of purchase price. On the reverse side of the Purchase Contriact are a number of other terms and conditions, which we summarize as follows:

(1) It is mutually agreed that if the purchaser pays to the seller the amount specified in the contract and interest thereon the seller will sell and...