GEORGE W. MILLER and CHARLES C. MILLER, Jr., Doing Business Under the Firm Name of MILLER BROTHERS MOTORS, Appellants,
EARL J. HALEY, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M T. Phelps, Judge. Judgment affirmed.
Messrs. Kibbey, Bennet, Gust, Smith & Rosenfeld, for Appellants.
Mr. Terrence A. Carson and Mr. E. J. Hilkert, for Appellee.
[38 Ariz. 470] LOCKWOOD, J.
Earl J. Haley, hereinafter called plaintiff, brought suit against George W. Miller and Charles C. Miller, Jr., copartners under the firm name of Miller Brothers Motors, hereinafter called defendants, to recover possession of a certain automobile, or for the sum of $500, the alleged value of the property, and for $200 damages for its wrongful detention.
Defendants answered with a general denial, and the matter was tried before a jury, which found in favor of plaintiff and assessed the value of the automobile at $360, and the damages for its detention at $350. Plaintiff in open court remitted all damages in excess of $200, and having elected to take the value of the property, judgment was rendered in his favor for the sum of $560. From this judgment and the order overruling a motion for new trial defendants have appealed.
Under our familiar rule we must resolve all conflicts in the evidence in favor of such a theory of the facts as will support the verdict of the jury. Securities Corp. Consolidated v. Babbitt Motor Co., 36 Ariz. 438, 286 P. 820. So viewed, the evidence shows the facts to be as follows: [38 Ariz. 471]
Defendants are and have been for a number of years engaged in the automobile business in the city of Phoenix, selling Nash automobiles. Plaintiff was interested in the possible purchase of a certain specific type of car which had not been as yet received by defendants for inspection or demonstration, and more or less preliminary negotiations had been carried on in the matter. About October 4, 1929, defendants' salesman, and agent, one Jack Stanaland, called upon plaintiff at his place of business to solicit an order. Plaintiff informed Stanaland that he would not give one as he wanted to see the car first, because he was very particular about its color. Stanaland suggested that plaintiff give a temporary order so that the latter would have the first choice when the new cars came in, telling him that if he didn't want the car the order would not be binding, and under these conditions plaintiff gave the order.
Stanaland filled in a regular printed sales blank, used by defendants for the purpose of taking orders, and it was signed by both parties, Stanaland then putting it in his pocket. Plaintiff immediately said that he wanted a copy of the order, to which Stanaland agreed, and took another similar printed blank and wrote "Copy" at the top of it. Plaintiff then informed Stanaland that he would fill in the order, as he wanted to be sure it bore the indorsement,
"This order subject to cancellation," whereupon Stanaland replied, "That is O.K.," and after plaintiff had filled in the printed order blank given him by Stanaland, placing thereon the phrase above quoted, the latter signed and returned it to plaintiff.
The order, among other things, provided that a car then owned by plaintiff would be accepted as part payment on the new car, and two payments still unpaid thereon were to be assumed by defendants, and after the execution of both copies of the order Stanaland [38 Ariz. 472] produced a blank form of bill of sale and asked plaintiff to sign it. Plaintiff, on Stanaland's promise that the blanks in the bill of sale would not be filled in unless and until the deal was completed, and that it would not be used without further authority from him, signed the form, none of the blanks being then filled in.
About three weeks later defendants notified plaintiff that the new cars had arrived, and the latter went down to the salesroom of defendants, and they were shown to him. None of them was of a color which suited him, and he thereupon informed defendants that he would not take a car. The next day, at the request of Stanaland, plaintiff again called at defendants' salesroom, parking his old car in the highway across from defendants' place of business. One of the defendants took him riding in the new car which had been offered him, and attempted to persuade him to take it, but he refused, stating that he would reimburse them for any outlay or expense incurred by them on the old car, but that he would call the deal off. At the termination of this conference he went to get into his old car, and found that defendants had taken possession of it, driven it off the street, and put it in their used car lot. There was some discussion then and later in regard to the matter, and an attempt to arbitrate it, but the parties could come to no agreement, and this action was brought. It is true that defendants' version of the whole transaction differs very materially from that of plaintiff, but there is evidence in the record which would sustain this theory of what actually happened, and as we have stated, the verdict of the jury thereon concludes the facts so far as we are concerned.
There are four assignments of error, but they all turn on one question of law, so we discuss the case from that standpoint. It is defendants' contention [38 Ariz. 473] that there was a binding contract of purchase and sale duly executed in writing between plaintiff and defendants, which was not on its face subject to cancellation, and that parol evidence was not admissible to vary that contract. It is the position of plaintiff, on the other hand, that there was never any contract of purchase and sale; that the transaction which occurred between himself and Stanaland on October 4th was an offer to purchase which was specifically made ...