APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions to grant a new trial.
Messrs. McNabb & De Camp, for Appellant.
Mr. Thorwald Larson, Mr. Henderson Stockton and Mr. Thomas A. Flynn, for Appellees.
[39 Ariz. 112] ROSS, J.
This is an action in conversion for the value of a cotton crop grown on the premises of defendants Pendergrass during the year 1928 by plaintiff Lazear.
After plaintiff had closed his case, the court granted defendants' motion for a directed verdict, and, from such order, plaintiff has appealed.
The complaint, in substance, alleges that prior to March 23, 1928, defendants Pendergrass were negotiating the sale of the premises to one Ella Stevens, and, during such negotiations, authorized such prospective buyer to lease the premises so that they could be cultivated during the year 1928, and that defendant P. P. Pendergrass authorized the agent of said Ella Stevens to lease said land on such terms as he was leasing other lands, or on such terms as he could secure; that, in pursuance of such authority, he did lease the land to E. B. Holder, L. B. Holder and plaintiff, and included the same in a lease from Edwin Roland and Alma Roland of certain of their lands to the Holders and plaintiff; that the terms and conditions of the lease were that the lessee should take possession of the land, clear, level and plant the same to cotton; the lessees to pay for seed and water, the expense of picking the cotton crop to be borne equally, and thereafter the crop equally divided, the lessors agreeing to repay lessees all expense of water and seed and to pay them $5 per acre for clearing and leveling the land.
[39 Ariz. 113] That the Holders quit and relinquished to plaintiff all of their interest in lease, and plaintiff cleared and leveled the land, planted it to cotton, and cultivated same during the year 1928.
That the sale of the land to Ella Stevens was not consummated.
That in October, 1928, defendants P. P. Pendergrass and John Luke forcibly took possession of the premises and appropriated the cotton crop to their own use, to plaintiff's damage in the sum of $3,500, the value of the cotton.
Defendants' answer was a denial of all of the allegations of the complaint.
The court granted the motion for a directed verdict, stating: "I am satisfied that the plaintiff hasn't made out the case as set up in the complaint." The motion was granted, therefore, on the grounds of variance of allegations and proof, or for failure of proof. Such ruling did not question the sufficiency of the complaint to state a cause of action. If therefore the complaint states a cause of action, and we think it does, and the evidence, considered in its most favorable light, supports such cause, it was error to take the case from the jury.
The motion for directed verdict does not question the sufficiency of the pleadings, but raises merely the question of the legal sufficiency of the evidence to sustain a ...