Young Mines Co., Ltd. v. Citizens' State Bank, a Corporation, Civil 2847

• Decision Date: 18 February 1931
• Docket Number: Civil 2847
• Citation: 37 Ariz. 521,296 P. 247
• Parties: YOUNG MINES COMPANY, LTD., a Corporation, Appellant, v. CITIZENS' STATE BANK, a Corporation, and E. S. WAKELIN, Appellees
• Court: Arizona Supreme Court

296 P. 247

37 Ariz. 521

YOUNG MINES COMPANY, LTD., a Corporation, Appellant, v. CITIZENS' STATE BANK, a Corporation, and E. S. WAKELIN, Appellees

Civil No. 2847

Supreme Court of Arizona

February 18, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Order granting new trial reversed and cause remanded.

Mr. J E. Morrison and Messrs. Cunningham & Carson, for Appellant.

Messrs Sloan, Holton, McKesson & Scott, for Appellees.

OPINION

LOCKWOOD, J.

Young Mines Company, Ltd., a corporation, hereinafter called plaintiff, brought suit against Citizens' State Bank, a corporation, and E. S. Wakelin, hereinafter called defendants, to recover the sum of $5,768 for money had and received. Defendants by their answer set up the statute of limitations; that the money in question was retained under instructions from plaintiff, and an estoppel by subsequent conduct. The case was tried before a jury, which returned a verdict in favor of plaintiff for the amount sued for. After judgment was rendered on the verdict, defendants moved for a new trial, which motion was granted, the court specifying in the order that it was granted on the following grounds: (a) Because of errors of law occurring at the trial and during the progress of the case; (b) because the court erred in refusing to grant defendants' motion for an instructed verdict; (c) because the court erred in its instructions to the jury; and (d) because the verdict and the judgment of the court is not supported by and is contrary to the evidence in the case. From this order granting a new trial as above set forth plaintiff has appealed.

A motion for a new trial is addressed to the sound discretion of the trial court, and if granted, every presumption is in favor of the action of such court. Power v Fairbanks, 146 Cal. 611, 80 P. 1075; 4 C.J. 782, and note. Where an order granting a motion for a new trial is general in its terms, it will be affirmed if it could properly have been granted on any of the grounds assigned. Huntsman v. First Nat. Bank, 29 Ariz. 574, 243 P. 598. When, however, the court specifies in its order the precise reasons it was granted, we are necessarily confined to those reasons in passing upon the order. Millar v. Madison Car Co., 130 Mo. 517, 31 S.W. 574; Anderson v. Chrisman, 37 Okl. 73, 130 P. 539.

We have examined the entire record carefully, and without going into details, are of the opinion that the trial court in entering its order did itself an injustice, so far as the first three grounds upon which the order is based are concerned. Nowhere in the record does it appear that the court erred during the trial and progress of the case in its rulings on questions of law. Every ruling in so far as we can determine was strictly proper. Nor did it err in refusing to grant defendants' motion for an instructed verdict. This motion was made at the close of plaintiff's case. The evidence at that time showed the receipt by defendants of money belonging to plaintiff, and that it had not been paid to the latter. This was sufficient to sustain a judgment for money had and received.

It is urged that there was an improper joinder of parties defendant, in that since they did not jointly receive the money in question, while an action would lie against either of them for money had and received, they could not be joined in the same action. We think the rule claimed by defendants is the correct one. Simmons v. Spencer, (C.C.) 9 F. 581; Denman v. Richardson, (D.C.) 284 F. 592. The point, however, should have been raised either by special demurrer or by a plea in abatement, and if not so raised, it is deemed waived. Sections 3776, 3777, Rev. Code Arizona 1928. And an objection of this kind not raised by demurrer or answer cannot be urged for the first time on appeal. Cooper v. Holder, 24 Ariz. 415, 210 P. 690. It does not appear the matter was ever presented to the trial court, and we therefore decline to consider it here.

Nor did the court err, at least as against defendants, in its instructions to the jury. They were fully as favorable as the latter had any right to ask. The order cannot be sustained on any of the three grounds above discussed.

We come, then, to the last ground, which is that the verdict is not supported by and is contrary to the evidence in the case. The rule in regard to a conflict in the evidence is far different in the trial court from that in the appellate court. So far as this court is concerned, we will sustain a verdict of a jury, or the findings of the trial court, if any reasonable evidence can be found in the record to support them, and we will not consider the weight of the evidence or conflict thereon. Leadville Mining Co. v. Hemphill, 17 Ariz. 146, 149 P. 384; City of Bisbee v. Thomas, 24 Ariz. 614, 212 P. 190.

On the other hand, the trial court not only may, but must, on an assignment of this character, pass on the weight of the evidence and if, after a full consideration of the case, in its discretion it believes that the verdict was contrary to the weight of the evidence, and that substantial justice has not been done between the parties, it is its duty to set aside the verdict and grant a new trial. Huntsman v. First Nat. Bank, supra; Dennis v. Stukey, ante, p. 299, 294 P. 276. In considering this ground assigned by the court for making its order, we must therefore resolve every conflict in the evidence in support of the order, just as we follow the same rule in support of a verdict or findings which are before us for review. Pengilly v. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63; Thomas v. Illinois Cent. R. Co., 169 Iowa 337, 151 N.W. 387. With this rule for our guidance, we state the facts as disclosed by the evidence as follows:

Plaintiff was a corporation engaged in the mining business, whose affairs were, during its entire existence, managed almost exclusively by George U. Young, its general manager, and one of its board of directors. Apparently he handled its business as though it were his own private affair. The bank account of plaintiff was carried in his personal name, and he incurred indebtedness on its behalf at will, signing his own name to notes for the plaintiff's debts. In 1920 he had purchased some $4,200 worth of groceries for the use of the company from Brackett Mercantile Company, of Mesa, Arizona. The Mercantile Company was insisting upon payment of the indebtedness and plaintiff had no funds with which to pay it. Defendant Wakelin at that time was in the wholesale grocery business in Phoenix, and the Brackett Mercantile Company was heavily indebted to him. By a mutual agreement among the three parties concerned Young gave Wakelin his personal note for the amount due the Brackett Mercantile Company. The Mercantile Company then canceled the indebtedness of plaintiff to it, and Wakelin gave the mercantile company credit on its indebtedness to him in the sum as shown by the note. There is no suggestion in the...