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Treadway v. Western Cotton Oil And Ginning Co.

Supreme Court of Arizona

April 18, 1932

L. C. TREADWAY and MARY P. TREADWAY, His Wife, Appellants,
v.
WESTERN COTTON OIL AND GINNING COMPANY, a Corporation, and PHOENIX SALES AND INVESTMENT COMPANY, a Corporation, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Messrs. Alexander, Silverthorne & Van Spanckeren, for Appellants.

Mr. Charles Woolf, for Appellee Western Cotton Oil and Ginning Company.

No appearance for Appellee Phoenix Sales and Investment Company.

OPINION

Page 372

[40 Ariz. 127] LOCKWOOD, J.

L. C. Treadway and Mary P. Treadway, his wife, hereinafter called plaintiffs, brought suit against the defendants herein, Western Cotton Oil and Ginning Company, a corporation, and Phoenix Sales and Investment Company, a corporation, hereinafter more particularly designated respectively as the oil company and the sales company, to recover the sum of $4,380 alleged by plaintiffs to be due from the defendants as installments on a certain [40 Ariz. 128] contract between plaintiffs and the sales company, which was by the latter assigned to the oil company. Apparently the sales company did not defend the action, but a demurrer was interposed to the complaint by the oil company, and sustained, and plaintiffs amended. A second demurrer was interposed to the amended complaint, which was also sustained, and plaintiffs electing to stand on that complaint, judgment was rendered in favor of the defendant oil company, and the matter is before us now for review.

The sole question for our consideration is one of law, involving the construction of two contracts. The facts in the case, as set up in the pleadings, may be stated as follows: Plaintiffs were the owners of a half section of land in Maricopa county. On November 1, 1928; they entered into an agreement with the sales company, the material parts of which read as follows:

"That the first parties agree to sell and the second party agrees to buy all that certain parcel of land situated in the County of Maricopa, State of Arizona, described as follows: The West Half (W 1/2) of Section 11, Township 1 North, Range 2 West of the Gila and Salt River Base and Meridian, for the sum of Forty Thousand Dollars ($40,000.00) payable as follows:

"$1200.00 November 5th, 1928; $2000.00 April 1st, 1929; $2800.00 January 22nd, 1930; and $2000.00 on the 2nd day of January of each following year, until the full purchase price of $40,000.00 is paid hereunder.

"It is understood and agreed that second party shall pay interest on all deferred payments hereunder at the rate of seven per cent (7%) per annum, payable annually on the second day of January of each year. . . .

"It is understood and agreed that the first parties are to execute a good and sufficient warranty deed conveying said property to second party, as of this date, and second party is to execute a quit-claim deed of this date conveying said property to first parties, said deeds to be placed in escrow with the Arizona [40 Ariz. 129] Title Guarantee and Trust Company, where all payments provided herein shall be made by second party.

"Upon failure on the part of second party to perform promptly all acts required of it herein, including the payment of all sums of money due hereunder, and the payment of all taxes and assessments required by it to be paid by the terms of this agreement, said quit-claim deed and warranty deed is to be delivered to first parties by said Arizona Title Guarantee and Trust Company.

"Upon payment of one-half of the purchase price under the terms of this agreement by second party, said Arizona Title Guarantee and Trust Company is to deliver said quit-claim deed and warranty deed to the party of the second part, at which time second party agrees to execute promissory notes representing the balance of the purchase price then due hereunder, together with a mortgage upon the property sold, securing the payment of said notes by it, and deliver same to first parties. . . .

"Second party agrees to enter upon said premises immediately and farm same in a good and husband-like manner during the life of this agreement, and to allow no noxious weeds or Johnson grass to mature on the premises.

"Time is the essence of this agreement, and the terms hereof are to extend to and bind the heirs, executors, administrators, and assigns of the respective parties hereto."

Upon the execution of said contract the sales company took possession of the premises.

On February 19, 1929, being heavily indebted to the oil company, it entered into an agreement with the latter, the material parts of which read as follows:

"Phoenix, Arizona,

"Feb. 18th, 1929.

"Western Cotton Oil ...


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