APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded for new trial.
Mr. Arthur E. Price and Mr. Frank W. Beer, for Appellant.
Mr. David A. Keener, for Appellee.
[39 Ariz. 427] LOCKWOOD, J.
Chandler Improvement Company, a corporation, hereinafter called plaintiff, brought suit against John Andersen, hereinafter called defendant, to recover from him the sum of $4,046.36, alleged to be due it as a balance on a certain contract to which we shall hereafter refer. There were three causes of action in plaintiff's complaint, but as defendant admitted liability on the second and third, a directed verdict was granted thereon, and we need not consider them. Defendant answered and counterclaimed on the first cause of action, and the matter was tried to a jury, which returned a verdict in favor of defendant in the sum of $190, and after the usual motion for new trial had been overruled, plaintiff brought the matter before us for review.
The facts in the case, as far as material to the determination of the appeal, may be stated thus: On February 3, 1930, plaintiff and defendant entered into a written contract, the material part of which is as follows:
"That the party of the first part has furnished to the party of the second part 263 steers of the age of upwards of two years for feeding purposes.
"The party of the second part agrees to feed said steers ensilage and other feeds for the purpose of fattening the same. The said party of the second part agrees to feed the same until they are fat enough to market, but not to exceed an average of ninety days; and provided, further, that none of said cattle [39 Ariz. 428] shall be fed for a longer period than ninety days. All expenses and costs whatsoever necessary for feeding said animals shall be paid by the party of the second part.
"The cattle are weighed in at the gross weight of 158,680 pounds, and with a four per cent. shrinkage, at the net weight of 152,333 and at the agreed price of ten cents per pound.
"The said animals shall be weighed out at the conclusion of the feeding period, at the agreed price of twelve cents per pound, with a four per cent. shrinkage.
"The cattle shall be weighed in and out upon scales at the Andersen Ranch, one mile west of Chandler, Arizona.
"The difference between the weighing in price and the weighing out price shall be the amount payable to the party of the second part in consideration for the feeding and care of the animals as described above . . ."
Pursuant to this contract defendant, as the party of the first part, delivered to plaintiff, as the party of the second part, 263 steers, which steers were fed by plaintiff on green pasture for approximately six weeks, and for the balance of the ninety days from the date of delivery in plaintiff's corral on ensilage, hay, and cotton-seed meal. At the conclusion of the ninety days plaintiff delivered the steers to defendant at his ranch, and they were weighed out, less shrinkage, at 204,552 pounds net. Thereafter defendant paid plaintiff the sum of $5,000, for which credit was given him upon ...