APPEAL from a judgment of the Superior Court of the County of Greenlee. Dave W. Ling, Judge. Judgment affirmed.
Messrs. Moore & Shimmel and Mr. A. R. Lynch, for Appellant.
Messrs. Mathews & Bilby and Mr. H. Earl Rogge, for Appellee.
[40 Ariz. 351] LOCKWOOD, J.
This is an action by R. S. Doenges, doing business under the name of Doenges Brothers, hereinafter called plaintiff, against the Dover Copper Mining Company, a corporation, hereinafter called defendant, to recover damages for the alleged breach of an oral contract for the hauling by plaintiff of certain ore belonging to defendant.
There were two causes of action set up in the complaint. At the close of the evidence
the court instructed a verdict in favor of defendant on the first one, and allowed the case to go to the jury on the second. A verdict was returned in favor of plaintiff in the sum of $11,220, on which judgment was duly rendered, and, after the usual motion for new trial had been overruled, the case was brought before us for review.
A proper consideration of the various assignments of error will require a statement of the facts. These facts, taking the evidence in the strongest light in favor of plaintiff, as we must do under our familiar rule, may be stated as follows: Defendant was the owner of certain mining claims situated near Morenci, Arizona, which it was engaged in developing. It was producing a certain amount of ore suitable for shipment, and plaintiff, learning that it was contemplating contracting the hauling of these ores from its mine to the nearest railroad station, entered into negotiations for doing the work with W. V. Tiscornia, the president and general manager of defendant corporation. After some discussion an oral contract was entered into between plaintiff and defendant [40 Ariz. 352] about March 1st, 1929. The contract was reduced to writing in the early part of April, although it bears date as of March 1st, and reads as follows:
"The Dover Copper Mining Co.
"3-1-29. "To Whom It May Concern:
"This agreement made between Doenges Brothers, a trucking company and The Dover Copper Mining Company on this first day of March in the year of 1929.
"For a consideration of $2.60 per ton, the above trucking company agrees to haul all the ore from the mining company's bins at the mine proper to the railroad bins at Clifton, a distance of approximately fourteen miles.
"It is further agreed that the trucking company is to assume all obligations pertaining to the trucking expense such as liabilities, property damage, supplies, parts cost necessary for the upkeep of said trucks, labor and etc., and to at all times save and keep harmless The Dover Copper Mining Company from any expense or liability accrued from the operation of said trucks.
"In witness whereof, the parties hereto have executed these presents the day and year ...