E. D. TWAY, Appellant,
THE O. S. STAPLEY COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. P. A. Sawyer, Judge. Judgment affirmed.
Messrs. Dougherty & Dougherty, for Appellant.
Mr. M. L. Ollerton, for Appellee.
This is an action by the O.S. Stapley Company on a contract between defendant Tway and [40 Ariz. 542] one John A. Hamilton, under the terms of which Tway agreed to pay plaintiff a certain sum of money owing plaintiff by Hamilton on certain conditions.
Plaintiff recovered judgment, and defendant appeals asserting the conditions of said contract have not been performed by Hamilton.
On July 7, 1930, Hamilton was indebted to plaintiff on a conditional contract of sale of a McCormick-Deering tractor and an International disc harrow in the sum of $679.81. On that day Hamilton bought of defendant a Cletrac tractor under a conditional sales contract, agreeing to pay therefor $3,036.88, payable as follows: In cash $941 and in deferred payments $1,047.94 on January 1, 1931, and a like sum on July 1, 1931. As a matter of fact the first payment of $941 was not paid in cash but was taken care of by the following contract, dated July 7, 1930, between Tway and Hamilton:
"It is hereby understood and agreed that when a sum of money equal to the amount of money which John A. Hamilton now owes the O. S. Stapley Co. upon a McCormick Deering 10-20 Tractor and an International Disc shall have been paid in to E. D. Tway, that the said E. D. Tway agrees to pay said money over to the O. S. Stapley Company in full payment of said indebtedness.
"The said John A. Hamilton agrees that said McCormick Deering Tractor and Disc shall then be turned over to the said E. D. Tway, and the said John A. Hamilton agrees to give E. D. Tway a bill of sale therefor showing same free and clear of incumbrance. E. D. Tway agrees to accept said McCormick Deering Tractor and Disc when fully paid for, and apply the sum of $600.00 upon a contract to purchase a Model 30 Cletrac Tractor, Serial No. B2749, for the sum of $941.00 due August 7th, 1930.
"And the said John A. Hamilton agrees that he will pay the difference between the amount of said contract and the amount allowed for said McCormick [40 Ariz. 543] Deering Tractor and Disc in cash on or before August 7th, 1930.
The question raised is as to whether when plaintiff brought this action Hamilton had performed the condition of the contract so as to mature defendant Tway's obligation to pay plaintiff. If he had, it must be conceded that plaintiff is entitled to recover of defendant the amount Hamilton owed plaintiff on July 7, 1930. Between July 7, 1930, and January 5, 1931, and before this action was commenced, Hamilton paid defendant $800 cash -- more than enough to cover the $679.81 due from him to plaintiff but not sufficient to cover that sum and the $341 left of the $941 after crediting it with the trade-in value of the McCormick-Deering tractor and the International disc harrow, fixed at $600.
It is the contention of the plaintiff that the contract means that when Hamilton had paid Tway cash enough to cover Hamilton's debt to it, Tway's duty and obligation to plaintiff became fixed; whereas, defendant Tway's contention is that the contract means, when properly construed, that Hamilton must not only pay him enough to cover what he owes plaintiff but also the difference between $941, the first payment on Cletrac tractor, and $600, the agreed trade-in value of the McCormick-Deering tractor and International disc harrow, which left in his hands $459 to apply on plaintiff's ...