Welker & Clifford v. Merrill

• Decision Date: 09 May 1927
• Docket Number: Civil 2578
• Citation: 255 P. 991,32 Ariz. 90
• Parties: WELKER & CLIFFORD, a Partnership Composed of J. R. WELKER, HENRY CLIFFORD and EUGENE EVANS, Appellants, v. H. M. MERRILL, Appellee
• Court: Arizona Supreme Court

255 P. 991

32 Ariz. 90

WELKER & CLIFFORD, a Partnership Composed of J. R. WELKER, HENRY CLIFFORD and EUGENE EVANS, Appellants, v. H. M. MERRILL, Appellee

Civil No. 2578

Supreme Court of Arizona

May 9, 1927

APPEAL from a judgment of the Superior Court of the County of Graham. C. C. Fairies, Judge. Affirmed.

Mr. E L. Springs and Mr. Luther P. Spalding, for Appellants.

Mr. J Verne Pace and Mr. Jesse A. Udall, for Appellee.

OPINION

LOCKWOOD, J.

H. M Merrill, hereinafter called plaintiff, brought suit against J. R. Welker, Henry Clifford and Eugene Evans, copartners under the firm name of Welker & Clifford, hereinafter called defendants, to recover damages for an alleged breach of a contract of purchase of cotton. The case was tried before the court without a jury, and judgment was rendered in favor of plaintiff. After the usual motion for new trial was overruled, defendants have appealed to this court.

There are but two assignments of error, which we will deal with in their order. The first is that there was a failure to join a necessary party plaintiff, the evidence showing the cotton which was the subject matter of the contract in question was owned jointly by plaintiff and one W. L. Baker. Defendants in this case answered merely by a general denial, although it appears that at the time of filing their answer they knew Baker was the owner of half the cotton. Paragraphs 468 and 469, Revised Statutes of Arizona of 1913, Civil Code, read in part as follows:

"The defendant may demur to the complaint when it appears upon the face thereof: . . .

"(4) That there is a defect of parties, plaintiff or defendant."

"469. When any of the matters enumerated in subdivisions one, three and four of the preceding section do not appear upon the face of the complaint, the objection may be taken by answer setting forth the objection in abatement or in bar of the action. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action."

We have passed upon this question repeatedly, and have always held that a failure to raise the question of nonjoinder of parties either by demurrer or answer waived the objection. Jenkins v. Irvin, 20 Ariz. 164, 178 P. 33; Stiles v. Samaniego, 3 Ariz. 48, 20 P. 607; Colvin v. Fagg, 30 Ariz. 501, 249 P. 70; Funk v. Funk, 76 Colo. 45, 230 P. 611; Church v. Zywert, 58 Mont. 102, 190 P. 291.

The second assignment is that the evidence failed to show that the cotton in question came within the contract relied upon by plaintiff. In order that we may consider this objection, it will be necessary that we review the testimony briefly. It appears that plaintiff, Merrill, was the owner of some eighty acres of land which had been leased to a tenant and planted to cotton. On the 30th of September, 1925, plaintiff and defendants entered into a written contract of purchase and sale of the cotton raised on the Merrill place, which contract reads as follows:

"Safford, Arizona, September 30th, 1925.

"Cotton Contract.

"This contract made and entered into in duplicate on this day of September 30th, 1925, by and between Welker & Clifford, hereinafter known as party of the first part, and H. M. Merrill, hereinafter known as party of the second part, Graham Co.

"The party of the second part agrees to sell all picked white cotton raised on his farm, one hundred bales more or less, in the 1925 season, at 25 cents per pound round, delivery to be made by Jan. 1st, 1926, and payment of said cotton is to be made upon delivery of same to cotton yards.

"It is further agreed that party of the second part is to have this cotton ginned at the Solomonville gin.

"In the consideration of one thousand dollars, receipt of which I hereby acknowledge, I, the undersigned, have agreed to the above sale. [Signed] Welker & Clifford, by J. R. Welker, Party of the First Part. Witness: [Signed] H. Merrill." (Italics ours.)

Pursuant to said contract some ninety-odd bales of cotton were delivered by Merrill to defendants and by them paid for. Some time about the 20th of December plaintiff went to defendants' office with the warehouse receipts for some twenty-three bales of cotton, to collect the money therefor as he had done with the other ninety-odd bales, but after some discussion defendants refused to accept and pay for the twenty-three bales. There is some dispute as to what was said at this time by the parties, plaintiff claiming that defendants assigned as an excuse only the fact that they had not the money to make the payment, while defendants insist their refusal was based on their not having as yet had a chance to inspect the cotton to see whether it came up to the contract. At all events, about the 12th of January, defendants having then according to their own statement inspected the cotton, including some ten other bales tendered them by plaintiff under the contract, refused to accept it, claiming that it was not of the kind and quality they had agreed to take, as it was spotted or tinged with yellow, and not white. Plaintiff then sold the cotton for the best price he could obtain and brought suit against defendants for the difference between the purchase price set up in the contract and the amount for which it was actually sold.

There is no dispute between the parties as to the amount of cotton involved, nor that...