L. GRAUMAN SODA FOUNTAIN COMPANY, INC., a Corporation, Appellant,
EARL E. ETTER, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions.
Mr. Austin O'Brien, for Appellant.
Messrs. Clark & Clark, for Appellee.
[41 Ariz. 152] ROSS, J.
This is an action by the L. Grauman Soda Fountain Company, Inc., against Earl E. Etter for the purchase price of three soda fountain units sold by the plaintiff to the E & G Fruit Juice Company, a copartnership composed of defendant and one George C. Keith, for the sum of $1,650, evidenced by the partnership note dated January 16, 1930, and payable on or before April 1, 1930. The defenses are (1) a general denial; (2) that the note was without consideration; and (3) that it was given under compulsion and coercion. The court heard the evidence and gave judgment to the defendant on the grounds of want of consideration and the failure of the plaintiff to deliver or tender delivery of the soda fountain units to defendant. The plaintiff has appealed.
In its amended assignments the plaintiff says the court erred in its judgment, in that the contract between the parties does not require a tender or delivery of the soda fountain units in order to obligate the defendant to pay the agreed purchase price; and in that the plaintiff's promise to deliver the goods upon the order of defendant was a good and sufficient consideration; and in that plaintiff had fully performed on its part the terms of the contract and was entitled to recover on the note.
A statement of the facts of the case as made by the plaintiff in its brief, to which no objection is taken by the defendant and which after reading the evidence we are satisfied is correct, is, with some slight changes and deletions, as follows: On May 11, 1929, the partnership, E & G Fruit Juice Company, was engaged in the manufacture and sale of soft drinks in the city of Phoenix, and on that date it entered into a written contract with plaintiff under the terms of which the partnership agreed to buy, and the plaintiff to sell, ten soda fountain units, containing mechanical refrigeration [41 Ariz. 153] or Frigidaire coils, at the price of approximately $650 for each unit; and, if not paid for in cash when delivered, to be paid for one-third cash and balance in deferred payments, with title to remain in seller until fully paid for. One of such units was paid for and delivered. On September 4, 1929, the partnership having decided that the type of fountain contracted for as above was not suitable to their needs, communicated the fact to plaintiff, and on that date said original contract was modified so as to call for only four more fountains, to be built by plaintiff according to specifications; that is, they were to be changed from the mechanical refrigeration type to the direct icing type, and the price was also changed from $650 to $550 each.
On September 4th, and as a part of the same transaction, the plaintiff gave to defendant, who was acting for the partnership, the following agreement, receipt and acceptance:
"Received of the E & G Fruit Juice Co., composed of E. E. Etter and George Keith, Phoenix, Ariz., a note, in the sum of $2,500.00 made payable to E. E. Etter, by the General Citrus Stores Co. and signed by W. A. Larkins, Pres. and Julius Fried, Secy. dated July 1st, 1929, and payable July 1st, 1930.
"It is understood that this note is deposited as colateral security, against the purchase of four (4) Dispensing Units, being made for the E & G Fruit Juice Co., at the price of $550.00 each F.O.B. Los Angeles, Calif. Units to be shipped as ordered, and it is understood that the four (4) units are to be paid for, not later than April 1st, 1930, and that as each unit is shipped, it will be billed, and considered as part of Lease Sale Contract, and is to bear interest at the rate of 7% from date of shipment, until paid for.
"L. GRAUMAN SODA FOUNTAIN CO., INC.
"By C. C. ...