J. P. LORDEN, Appellant,
JAY H. SNELL, Appellee
APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.
Mr. Glenn Copple and Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.
Mr. W. F. Timmons, for Appellee.
[39 Ariz. 129] ROSS, J.
This action was brought by Jay H. Snell for damages claimed by him to have been suffered through the negligent failure of defendant J. P. Lorden to keep and perform his part of the following contract:
"The memorandum of agreement, made and entered into, in duplicate, this 16th day of March, A.D. 1925, by and between J. P. Lorden, of Yuma County, Arizona, party of the first part, and Jay H. Snell, of the same place, party of the second part, Witnesseth:
"That, whereas, the party of the first part is in the control of certain real premises in Yuma County, State of Arizona, hereinafter mentioned and described, adaptable to pecan nursery; and,
"Whereas, the party of the second part is a skilled nurseryman, versed in the art of pecan culture, grafting, and like arts in the management and growth of pecan trees; and,
"Whereas, it is the desire of both of the parties hereto to enter upon the enterprise of setting out a pecan nursery, attending same to salable age, and then disposing of same;
"Now, therefore, in consideration of the premises, and of the mutual promises of the parties hereto, [39 Ariz. 130] made by one unto the other, the same to be done, kept, and performed, it is by the said parties agreed:
"That in the said enterprise hereinabove mentioned the party of the first part shall furnish, for the purpose of setting out a pecan nursery, certain premises, approximately 116 feet by 700 feet in area, on premises situate in Yuma County, and particularly described as follows: The W.1/2 of NE.1/4 of Sec. 23, Twp. 9 S.,R. 24 W., G. & S.R.M., the same being about 1 1/2 acres in area; and party of the first part shall furnish water in sufficient amount for the proper irrigation thereof from this time until the closing out of said nursery;
"The parties shall pay equally between them, share and share alike, the cost and expense of buying seed pecan nuts, and the expressage on same, in sufficient amount for the planting thereof on said plot of ground;
"Party of the first part shall pay for the unskilled labor of planting said nuts, party of the second part to superintend in person, without pay, the labor of planting; and thereafter the party of the first part shall pay all of the expense of irrigating, keeping down weeds, and otherwise cultivating the growing ...