INTERNATIONAL HARVESTER COMPANY OF AMERICA, a Corporation, Appellant,
NICK DAVOTVICH, Appellee
APPEAL from a judgment of the Superior Court of the County of Pinal. E. L. Green, Judge. Judgment affirmed.
Mr. M. L. Ollerton, for Appellant.
Messrs. McFarland & Fullbright for Appellee.
[42 Ariz. 250] McALISTER, J.
This is an action in replevin instituted by the International Harvester Company, a corporation, against Peter Dimich and Nick Davotvich to gain possession of the following farm machinery sold the latter by the O.S. Stapley Company under an agreement by which the seller, or its assigns, retained title until the full amount of the purchase price was paid, namely: One Farmall tractor, No. QC40617, one No 1 Farmall middle buster, one two-row Farmall cultivator, and one Farmall tractor, No. QC55185.
At the time of the sale of the first three implements, viz., January 15, 1929, the defendants, who were partners in farming operations, executed four promissory notes in favor of the O.S. Stapley Company bearing eight per cent. interest until maturity and ten per cent. thereafter. Two of these notes were in the sum of $345 each, were given for balance due on the Farmall No. QC40617 and matured on June 15th and October 1st, 1929, respectively. The other two were in the sum of $85.50 each, bore the same interest as the first two and were given for a No. 1 Farmall middle buster and a two-row Farmall cultivator. They likewise matured, one on June 15th and the other on October 1st, 1929. Each of these notes provided that until they were paid title to the implements for which they were given should remain in the payee, owner of holder, and should default be made in the payment thereof, the owner or holder of the notes could take possession of the implements and retain them.
About fourteen months following this transaction, to wit, on February 27, 1930, the defendants executed a note for $560, payable to the O.S. Stapley Company October 1, 1930, to cover the deferred payment on a second Farmall tractor, No. QC55185, the same provisions as to interest, title and default that were contained in the other four notes being placed therein.
[42 Ariz. 251] Immediately after the execution and delivery of these notes they were indorsed, sold, assigned and delivered to the plaintiff, the International Harvester Company of America, who then became and has since remained the owner and holder of them and of the legal title to the implements for which they were given. They bore also an indorsement by the O.S. Stapley Company guaranteeing their payment.
When the complaint was filed in January, 1932, payments amounting to $650 of the $861 principal which the four notes dated january 15, 1929, totaled, had been indorsed on them, and a payment of $100 on the principal of the note for $560 dated February 27, 1930, was also indorsed on it. According to the indorsements these notes bore, none of them had then been fully satisfied, so the complaint alleged that a portion of the purchase pice for each of the implements was due and unpaid and that under the terms of the notes the plaintiff was entitled to the possession thereof, but that the defendants had wrongfully withheld this and still refused to surrender it, notwithstanding the plaintiff had made demand therefor upon them.
To this complaint the defendant, Nick Davotvich, who prior to the institution of the action had acquired the interest of his partner, Dimich, demurred generally, and answered further admitting the purchase of the implements and the execution and delivery of the notes, but alleged that he had paid those dated January 15, 1929, in full, the final payment thereon having been made on February 12, 1931; that following this the plaintiff caused a writ of replevin to issue to the sheriff, commanding him to seize the implements, and this was done; that since then the plaintiff has wrongfully withheld and detained the same; that the reasonable value of the property wrongfully and maliciously taken and detained was $800; that the damage caused the defendant by reason of such [42 Ariz. 252] wrongful taking and detention was $1,200. The substance of the answer was set up also by way of a cross-complaint.
The jury by its verdict found that the plaintiff was entitled to the second Farmall tractor, No. QC55185; that the defendant was the owner of and entitled to the possession of the first Farmall tractor, No.QC40617, the Farmall middle buster and the Farmall two-row cultivator; that the value of the three last-named implements was $500; and that the defendant was damaged by the plaintiff in the sum of $350 as a result of its detention of his property.
Following the rendition of the verdict the defendant elected to accept, in lieu of the three implements the jury found to be his, the $500 fixed by it as their value. Thereupon, the court rendered judgment in favor of the defendant in the sum of $850 and ...