Gambar halaman
PDF
ePub

now, for the first time, adopt in this commonwealth a doctrine which has never been supposed by the profession to be in force here; which would introduce a new exception to the statute of frauds; which, as experience elsewhere has shown, tends to promote uncertainty and litigation; and which appears to us to be unfounded in principle, unsuitable to our condition and usages, and unnecessary to secure the just rights of the parties. If no third person has acquired any rights in the land by bona fide attachment or conveyance, the original vendor may secure payment of the debt due him for the purchase money by the usual attachment or mesne process. If any third person has acquired rights in the property, there is no reason why equity, any more than the common law, should interpose to defeat them." In the main, the courts which have expressed disapprobation of the doctrine have based their decisions upon the ground that it is inconsistent with the general policy prevailing in this country of making all matters of title dependent upon record evidence. There is no statutory recognition of the doctrine in this territory. The common law of England is adopted and made the rule of decision for our courts "so far only as it is consistent with and adapted to the natural and physical condition of the territory, and the necessities of the people thereof, and not repugnant to, or inconsistent with the laws of the territory, or established customs of the people." Rev. St. par. 2935. After giving to the question the deliberate consideration which its importance demands, we are forced to the conclusion that this principle of an implied lien for purchase money can have no just application in this territory. It is opposed to the policy of our legislation, which aims to make the title to real estate as simple and easily understood as possible, and to facilitate its transfer and improvement by discouraging all secret or latent equities, and requiring conveyances and incumbrances thereof to be made matters of public record. Here, our attachment law readily permits a debt to become a lien before judgment, and debts generally are a lien upon the lands of decedents. The doctrine being thus repugnant to our registration law, illsuited to our condition, and by no means essential to the interests of justice, we ought not to adopt it. The judgment of the district court will be affirmed.

*

STREET, C. J., and DOAN, J., concur.

(6 Ariz. 428)

GLENDALE FRUIT CO. v. HIRST. (Supreme Court of Arizona. Nov. 1, 1899.) ASSIGNMENT-SUFFICIENCY-CONSIDERATION WAGES-ATTACHMENT-JUDGMENT. 1. That an assignee of a claim merely gave his duebills therefor does not affect his right to maintain a suit thereon.

-MASTER AND SERVANT-ACTION FOR

2. Where a corporation recognized a person as its manager and superintendent after he com

menced suit against it, and he continued to perform services required by it as before, the same, operated to continue his contract of employ ment, and entitled him to recover salary for such services at the agreed price.

3. In the absence of intervening rights of third parties, a lien against property seized under attachment may be decreed for the judgment recovered against a defendant personally served, though it exceeds the sum for which the writ was issued.

Appeal from district court, Maricopa county; before Justice Webster Street.

Action by C. T. Hirst against the Glendale Fruit Company. From a judgment for plaintiff defendant appeals. Affirmed.

Hamilton & Armstrong, for appellant. C. F. Ainsworth, for appellee.

SLOAN, J. The appellee, C. T. Hirst, brought suit in the court below against the appellant, the Glendale Fruit Company, a corporation, to recover the sum of $1,661.14, upon three several causes of action, on the 4th day of January, 1898, the first of which charged the defendant company with an indebtedness of $375, due for salary as manager and superintendent of the defendant company's fruit ranch, situate in the county of Maricopa, at the agreed and stipulated sum of $125 per month for the months of October, November, and December of the year 1897. The second cause of action charged an indebtedness in the sum of $1,199.75, due from the defendant in the action on account of various sums paid out and expended by the plaintiff in the action to various and divers persons at different times and dates, at the request of the defendant, between the 1st day of March, 1897, and the 1st day of January, 1898. The third and last cause of action charged an indebtedness of $116.39, due the plaintiff from the defendant for and on account of an assigned claim of Hatcher & Hurley, due for meats delivered to the said defendant company by said Hatcher & Hurley prior to the 1st day of January, 1898. At the time of the commencement of the action, the plaintiff, Hirst, made affidavit setting up the foregoing items of indebtedness due from the defendant, and obtained a writ of attachment against the property of the defendant in the sum of $1,661.14, which said writ of attachment was thereupon levied upon certain personal property and certain real estate comprising the defendant's fruit ranch, all situate in said county and territory. On March 5, 1898, the plaintiff, Hirst, filed an aménded complaint, in which his first cause of action was enlarged and extended so as to include a claim for salary at the agreed sum of $125 per month from the 1st day of October. 1897, up to the time of the filing of his amended complaint; and further setting forth that, in addition to said salary, the defendant company agreed to furnish him with a suitable house to live in with his family during the continuance of said contract. In the second cause of action, as set up in the amended complaint, the plaintiff charged an indebted

ness in the sum of $2,135.59 for and on account of various sums paid by him at the instance and request of the defendant company for and on account of various sums due and owing from said defendant company to various persons at different times between the 1st day of December, 1896, and the time of filing said amended complaint. In his third cause of action set up in the amended complaint the plaintiff, Hirst, claimed an indebtedness due from the defendant to him in the sum of $100 for expenses incurred in plowing, cultivating, and taking care of defendant's fruit ranch between the 1st day of March, 1898, and the time of filing the amended complaint. The defendant company, in its answer, filed its general denial, and by way of further answer set up that at various times after the 1st day of December, 1896, up to the time of the filing of the answer, the plaintiff had sold and applied upon his alleged claim sufficient property of the defendant to pay off and discharge in full all claims and demands of the plaintiff against the defendant set up in plaintiff's amended complaint. The defendant, in its answer, set up specifically various amounts and sums received by the plaintiff out of the proceeds of the property of the defendant, amounting in all to the sum of $5,487.24; and further set up that various other sums and amounts should be so credited against the plaintiff and in favor of the defendant, which the defendant was unable to specify in detail for the alleged reason that the plaintiff had been in the exclusive charge, control, and possession of the property of the defendant, and had concealed from the defendant his disposition of the same. By way of counterclaim the defendant set up in its answer that the plaintiff, Hirst, while in the possession and control of the fruit ranch of the defendant, and while pretending to act as superintendent and manager thereof, on or about December 14, 1896, received for account of the defendant a draft in the sum of $415.36, to be by him used and applied in the care and keeping of said ranch and property as directed by the defendant company; that the plaintiff, Hirst, neglected and failed to use and apply the same for the use of the defendant, and had failed and refused to account for or pay over and return the said sum to the defendant upon the request of defendant; on the contrary, had converted the same to his own use. And by way of a second and further counterclaim the defendant set up that between the 1st day of December, 1896, and up to and including the 1st day of March, 1898, the plaintiff was in charge of the defendant's fruit ranch and business, as superintendent and manager thereof; that between the 1st day of December, 1896, and the time of the filing of the answer, the plaintiff had disposed of the products of said ranch, and the property of the defendant situate thereon, and had collected various sums aggregating the amount of $5,071.88, and had failed, neglected, and refused to account to

the defendant for said sums so received by him, or to pay over any of said sums so received to the defendant. The defendant prayed judgment against the plaintiff upon said counterclaims in the sum of $5,487.24. The cause was tried by the court without a jury, and judgment rendered for the plaintiff in the sum of $2,704.46. The judgment provided for the foreclosure of the attachment lien against the property levied upon under the writ of attachment for the full amount of the judgment, together with the costs of the action; of which amount the sum of $1,957.59, with $66.40 costs, was adjudged a lien on the personal and real property levied upon from the time of the levy, and the sum of $746.87 was adjudged a lien upon said property from the 4th day of March, 1898, being the date of the filing of plaintiff's amended complaint. The defendant company moved for a new trial, which was denied, and brings this appeal from the order denying said motion, and from the judgment rendered in the cause.

Numerous assignments of error are made by counsel for appellant in their brief. Among other matters, it is contended by appellant that the court erred in receiving testimony relating to certain items of the plaintiff's account which had not been paid by him, but for which he had merely given duebills, and which items had not been assigned to him. An inspection of the record discloses the fact that these duebills were intended as, and were in fact in form, such an assignment of the claims for which they were given as to give the plaintiff the right to maintain suit thereon.

It is also contended that the court erred in receiving evidence as to the services rendered by the plaintiff under his contract with the defendant company after the 4th day of January, 1898, when the original complaint was. filed in the action, for the reason that the plaintiff in the action by thus bringing suit had put himself in an antagonistic relation to the defendant company, and had thereby terminated his agency and severed his connection with the company as its manager and superintendent. The testimony, however, tends to show that, notwithstanding the suit, plaintiff remained in charge of the ranch of the defendant company, and transacted the affairs of the company, with full knowledge on the part of the company, and received and carried out the instructions of the officers of the company with reference to the management and control of the fruit ranch and business of the defendant company, in the same manner and to the same extent as he had previous to the commencement of the action. Whatever otherwise, therefore, might have been the effect of the plaintiff's action in bringing suit, in terminating his relations to the company as its agent and superintendent, the action of the company and its officers in recognizing plaintiff as manager and superintendent of the ranch after his action, and his performance of the duties required by his

present reversible error. court below is affirmed.

contract as such manager and superintendent, operated to continue in force and effect his contract, and entitled him to recover salary at the agreed price.

It is also contended that the court erred in decreeing a lien by virtue of the attachment against the property of the company for the full amount of the judgment recovered, for the reason that this amount was in excess of that set up in the affidavit of attachment, and for which suit was originally brought in the original complaint filed in the action. While it is undoubtedly true that, as between a judgment creditor and third persons who are creditors of the judgment debtor, no lien can be established and enforced in excess of the amount set up in the aidavit, and for which the writ is issued, an examination of the authorities has convinced us that the rule is otherwise where personal service is had upon the defendant in the action, and the judgment rendered upon the merits, and the interests of third parties are not affected thereby. The cases cited by counsel for the appellant are not in point. Rowley v. Berrian, 12 Ill. 199, was a case in which there was no personal appearance by the defendant, but judgment was rendered upon the amended complaint for a larger sum than that called for in the writ of attachment and declaration. The case of Stewart v. Anderson, 70 Tex. 599, 8 S. W. 295, was a case wherein the property of a nonresident of the state was seized under attachment, and no personal service had upon the defendant. In the latter case the court based its ruling that no judgment could be rendered nor any lien established in excess of the sum called for in the affidavit which was the basis of the writ of attachment, upon the ground that the attachment proceedings were necessary to give the court jurisdiction to render any judgment against the defendant or his property. In the present action the attachment proceedings were, under the statute, wholly ancillary, and no jurisdictional question is presented. Under the statute the officer serving the writ is required to seize and levy upon so much property of the defendant as may be necessary to satisfy the amount specified in the writ. In the absence of intervening rights and equities of third parties, in what way or in what manner can a defendant be injured should the court render judgment in excess of the amount specified in the affidavit of attachment and in the writ, and foreclose the lien of the attachment for the full amount of the judgment against the property so levied upon? We know of none. The authorities are ample to sustain the action of the court in adjudging and foreclosing a lien against the property seized under the writ of attachment for the full amount of the judg ment, it appearing that no intervening right or equity of any third person is injuriously affected thereby. Syracuse City Bank v. Coville, 19 How. Prac. 385; Searle v. Preston, 33 Me. 214. The remaining assignments of error we have considered, but none of them

DOAN and DAVIS, JJ.,

Judgment of the

concur.

(6 Ariz. 404)

O'CONNOR et al. v. ADAMS et al. (Supreme Court of Arizona. Nov. 1, 1899.) APPEAL-PLEADING-TRIAL-CONTRACTS

CONSTRUCTION-SUBMISSION TO JURY. 1. Permission to amend the complaint by substitution will not be reviewed, where the record does not disclose the original pleading.

2. An averment that the owner of a building orally promised to pay the contractor $7 per 1,000 for all brick laid up in the walls of an additional building, according to the terms of a written contract for the other building, states a cause of action for brick furnished under the parol contract, though the "terms" of the written contract were not stated.

3. Where a contractor claimed extra pay under a parol contract for erecting the walls of a kitchen to a building, and the original written contract was for all brickwork in the walls of the building according to plans not then complete, but which were to be furnished by the architect, and the plans in evidence provided for the kitchen walls, and the architect, without contradiction, identified them as the ones under which the building was completed, the court should have charged that the kitchen walls were included in the contract, and it was error to submit the construction of the contract to the jury.

4. Where the balance on a building contract was payable within 60 days after completion, inspection, and acceptance by the architect, action would not lie within the 60 days, whether the architect accepted or refused to accept the work.

Appeal from district court, Maricopa county; before Justice A. C. Baker.

Suit by O'Connor & Cottrell against J. C. Adams and another. From a decree for plaintiff's and an order denying a new trial, defendants appeal. Reversed.

C. F. Ainsworth and Thos. D. Bennett, for appellants. Walter Bennett and Joseph Campbell, for appellees.

DOAN, J. This action was brought by plaintiffs and appellees herein against J. C. Adams and wife, appellants herein, in the district court of Maricopa county, on the 11th day of December, 1896, to recover $3,131.04 and costs, for labor and material furnished under certain contracts in the construction of the Hotel Adams, in Phoenix, and the foreclosure of a mechanic's lien on the property for that amount. Two contracts are set out in the pleadings, called "Contract A" and "Contract B," dated on April 23d and June 2d, respectively, which specified minutely, and at considerable length, the terms and provisions under which all materials were furnished and labor performed. The plaintiffs alleged a further and verbal contract for labor and material beyond that covered by the written contracts hereinbefore mentioned, which was denied in the answer, the defendants claiming that the labor and materials were all provided for in the second

written contract. The defendant J. C. Adams demurred to the complaint-First, on the ground that the allegations do not state facts sufficient to constitute a cause of action; second, that it appears on the face of the complaint, and from the contract attached thereto, which is a part thereof, that at the time of the commencement of this action there was nothing due on said contract, and that the action was prematurely brought.

The contract was made for "all brick laid in the walls of the building now being erected upon the corner of Center avenue and Adams street, and commonly known as the 'Hotel Adams,' upon the following terms and conditions," among which are: "The walls of said building, when completed, are to be measured," etc. "The parties of the first part agree to pay 75 per cent. of the value of the brickwork that shall be laid in the walls, upon an estimate which shall be furnished every two weeks by the architects, Millard & Creighton, and shall pay the full amount remaining due within sixty days after said work has been completed, inspected, and accepted by said architects, Millard & Creighton." "The parties of the second part agree to furnish the brick to be laid in all walls in the above-mentioned building, and to lay them, according to the plans and specifications which shall be furnished to them by the said party of the first part or by the said architects, Millard & Creighton, for $7 per thousand. Said walls to be measured when erected and completed," etc. "It is agreed by all the parties to this contract that the plans and specifications for said building are to be made by Millard & Creighton, architects, and that said plans at this date are not completed, and that the work shall be done in accordance with any plans furnished by said architects, and under their direction, and in a manner satisfactory to them,"duly signed and sealed. The complaint alleged that all the conditions of Contract A had been fully performed on the 26th day of September, 1896, except where plaintiffs had been delayed by delay or default of the defendants; that all the conditions of Contract B had been performed on September 18, 1896, excepting cleaning down the walls, etc.; that all the conditions of the verbal contract were performed by plaintiffs prior to November 15th, and that on the 18th day of September, 1896, and repeatedly thereafter, until November 2d, plaintiffs applied to the architects, Millard & Creighton, to measure, inspect, and accept the work done under said contracts, and that the said architects unjustly and capriciously refused to measure up said work, and file an itemized declaration of the acceptance of the same; that, on the 2d day of November, Mr. Creighton, one member of the firm, did state to plaintiffs his approval and acceptance of the work done by plaintiff under said contracts; that the defendant J. C. Adams informed plaintiffs that he would not, at any time within 60 days after said date of

acceptance, pay the balance due upon said contract; that the plaintiffs, on December 2, 1896, filed for record the contracts, together with an itemized account of the claim, as required by law, and served on defendant J. C. Adams a copy of said notice of lien; that the said J. C. Adams was the husband of said Anna D. Adams; and that, in all matters relative to the building mentioned under the contracts in question, the said J. C. Adams acted for himself and as agent of said Anna D. Adams, and as such agent had been in charge and in control of said work and building. On the trial of the case, the demurrer of the defendants was overruled. The testimony of the plaintiffs, relative to the verbal contract and the intentions and understanding of the plaintiffs upon signing the written Contract B, was admitted in evidence over the objection of the defendants. The court refused to construe the Contract B, when requested by the defendants, on motion, so to do, and, over the objection of the defendants, submitted to the jury, for their consideration and interpretation, the written contracts, and the testimony of the plaintiffs explanatory thereof, as well as the testimony in regard to the verbal contract. The entire case, including the written contracts, was submitted to the jury under 11 instructions given at the request of the plaintiffs, 15 given at request of defendants, and 5 special questions submitted to the jury by the court. The jury returned specific answers to the questions submitted, and a general verdict for the plaintiffs, and assessed the damage at $2,000, upon which the court entered judg ment in accordance with the verdict, and decree of foreclosure of the lien upon the property; from which judgment and decree, and the denial of the motion for a new trial, the defendants appealed.

The first and second errors assigned are directed to the ruling of the trial court in permitting the plaintiffs, over defendants' objection, to amend their complaint on the trial, and after the plaintiffs had rested. These rulings will not be reviewed by this court. The amendment of pleadings during trial is largely a matter of discretion, and in this instance the amendment was by substitution, so that the record does not enable this court to determine the scope or effect of the amendment, there being no exhibit of the original complaint. The only text furnished in the record is of the complaint as it read after the last amendment, with no means of determining what constituted the original complaint, or what part of the text resulted from the first and second amendments, respectively.

It is next alleged that the court erred in denying defendants' motion to dismiss the action at the close of plaintiffs' case. This was practically a renewal of defendants' demurrer, but it goes somewhat further. The demurrer, although well taken as to the action on the Contracts A and B, was properly over

ruled as to the verbal contract alleged in the complaint to have been made on October 10th, when the defendant J. C. Adams promised to pay plaintiffs "$7 per thousand for all brick laid up in the walls of an additional building, according to the terms of said contract" (with no terms given, except the defendants' promise to pay, and plaintiffs' agreement to furnish materials and perform the labor). This contract, if sustained by the evidence, would have been sufficient to constitute a cause of action.

They

The motion to dismiss, made after the plaintiffs rested, was based upon the theory that the plaintiffs had failed to sustain by any evidence the alleged verbal contract; that the terms of the written contract would exclude the possibility of any such verbal contract. The plaintiffs alleged that all material furnished, and all labor performed, under said contracts, were done under the direction and supervision of the architects, Millard & Creighton, mentioned in said Contracts A and B, and the special superintendent of said work, employed for the purpose by the defendant J. C. Adams, and that the said material and labor were duly accepted by the said architects and superintendent as the work under said contracts progressed, and without complaint or protest on the part of said architects or superintendent. Plaintiff O'Connor testified, in answer to the question, "What verbal contract did you have, if any, with Adams with reference to the building of the one story kitchen?" "We were told that they were ready to start, and we went on and got the brick there. told us to commence hauling the brick." On cross-examination he testified as follows: "We hauled brick on the ground for construction of the kitchen before Adams returned from Chicago, and before we were notified to go ahead with the work. We never said a word about the job. We were anxious to go on with it. Mr. Adams and Mr. Guthrie never said anything to us about the price, nor what we were going to charge, but we done this work without any stipulation, and we did not know whether we were going to get $7 or $10 per thousand, and Mr. Adams did not know anything about it. We charged them $7 a thousand. Guthrie, Adams, and myself measured up this when we completed the work, some time in November." Plaintiff Cottrell testified: "My recollection is we commenced the brickwork for the kitchen and dormitory in October. I do not remember Adams ever mentioning the kitchen to me personally." Defendant Adams testified positively that, the Contract B included the brickwork on the kitchen. The language of the contract is plain and direct, and included the brickwork in all the walls of the hotel building. The architects, Millard & Creighton, testified that the plans for the office and kitchen were a part of the plans for the building, and the plans and specifications as put in evidence sustained that testimony. The agreement in Contract B, "that the plans and specifications are to be made by

Millard & Creighton, architects, and that the work shall be done in accordance with any plans furnished by said architects," unquestionably disposes of this matter. Such being the case, the motion to dismiss should have been granted, and the refusal to grant it was

error.

It is next claimed that the court erred in refusing to construe Contracts A and B, set out in plaintiffs' complaint, when the contracts themselves were not ambiguous or uncertain, and in submitting the same for construction to the jury. The disposal of the proposition involved herein will render unnecessary the determination of many of the questions presented in the other assignments. The rule is well settled that when the terms and language of the contract are ascertained, in the absence of technical phrases, or the existence of latent ambiguities, rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court alone. "It would be a dangerous principle to establish, where the parties have reduced their contracts to writing and defined their meaning by plain and unequivocal language, to submit their interpretation to the arbitrary and capricious judgment of persons unfamiliar with legal principles and the settled rules of construction." Brady v. Cassidy, 104 N. Y. 155, 10 N. E. 131. This contract is clear, free from ambiguities, and easily understood. The parties themselves have plainly expressed in writing what is included in the contract. The contract expressly provides that the plaintiffs shall furnish all material and do all the brickwork in the construction of the Hotel Adams, according to the plans and specifications made by the architects, Millard & Creighton. Then they put a clause in the contract that, at the time of signing this contract, the plans and specifications are not yet completed, but that the said plaintiffs are to furnish all the material and do all the brickwork in accordance with any plans to be furnished by said architects. The only question, then, that was pertinent under this contract, was as to what plans and specifications were adopted and furnished by these architects, Millard & Creighton, for the construction of the Hotel Adams. Whenever this was ascertained, then it was certain what work was to be performed by the plaintiffs on their part. It was perfectly competent and proper to admit testimony as to what constitutes the plans and specifications, but it was not competent to show what work the plaintiffs understood they were to perform at the time they signed the contract, or what portion of the plans they understood was not included in the contract, except as expressed in the contract itself; for, if this kind of testimony is admitted, it would abrogate the contract, and let the entire transaction rest on parol. The court should have construed this contract according to its plain provisions, as indicated by the words and terms used, and should have defined the rights and liabilities of the parties thereunder, and

« SebelumnyaLanjutkan »