APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. David A. Keener, for Appellant.
Mr. Frank W. Beer, for Appellee.
[42 Ariz. 272] LOCKWOOD, J.
Gunner Thude, hereinafter called plaintiff, brought suit against John Andersen, hereinafter called defendant, to recover the value of eleven head of cows sold by the latter which plaintiff claimed belonged to him. The case was tried to a jury and a verdict returned in favor of plaintiff in the sum of $748.00, and after the usual motion for new trial was overruled this appeal was taken.
There is but one question before us, and that is whether or not the court should have sustained the demurrer to the amended complaint on the ground that it showed affirmatively on its face that it was barred by the statute of limitations, and the answer to this question will depend upon whether the complaint is one in tort for a conversion, or in assumpsit on an implied contract to pay for the cattle. It reads as follows:
"1. That plaintiff and defendant are now and were at all times hereinafter mentioned residents of Maricopa County, State of Arizona; that the plaintiff was on December 12, 1928, and now is the owner of and entitled to the possession of the following described personal property, to-wit: Eight (8) Herford [42 Ariz. 273] Cows Branded F; Three (3) Herford Cows Branded 7-V.
"2. That on or about the 12th day of December, 1928, the defendant, through his agents, servants and employees, carelessly, negligently, accidentally and by mistake took possession of, intermingled and mixed the above described cattle of the plaintiff with cattle belonging to the defendant.
"3. That said defendant on or about the said 12th day of December, 1928, sold all of his said cattle and the above cattle of the plaintiff to a person or persons who are to this plaintiff unknown for a large sum of money.
"4. That the proceeds from the sale of the above described cattle of the plaintiff were by the defendant mixed and intermingled with the proceeds from the sale of defendant's cattle.
"5. That the mixture and intermingling of plaintiff's and defendant's cattle as aforesaid was unknown to the plaintiff and not discovered by him until on or about the 10th day of January, 1930; that the plaintiff immediately after making such discovery demanded from the defendant the value of said cattle and/or the proportionate part of the proceeds from the sale of the same as aforesaid and that the defendant refused to pay both the proportionate part of the proceeds from the sale thereof and the reasonable value, and has ever since said demand, failed, neglected and refused so to do.
"6. That the reasonable value of said cattle of the plaintiff above described, was on December 12th, 1928, the sum of Eight Hundred ($800.00) Dollars.
"Wherefore, plaintiff prays judgment against the defendant in the sum of Eight Hundred ($800.00) Dollars with interest from December 12th, 1928, at the rate of six (6%) per ...