APPEAL from a judgment of the Superior Court of the County of Maricopa. John P. Clark, Judge. Judgment affirmed.
Messrs. Walsh & Wilmer, for Appellant.
Mr. I. A. Jennings, Mr. Hess Seaman and Mr. Henry S. Stevens, for Appellee.
[50 Ariz. 419] LOCKWOOD, J.
The O.S. Stapley Company, a corporation, hereinafter called plaintiff, brought an action in replevin against the Valley Chevrolet Company, a corporation, hereinafter called defendant, to recover possession of a certain truck and trailer. The [50 Ariz. 420] case was tried to the court sitting without a jury, and judgment was rendered in favor of the plaintiff, whereupon this appeal was taken.
The material allegations of the complaint were substantially as follows: On the 24th of September, 1935, one Olen Watkins purchased from plaintiff an International truck with utility trailer attachment for $2,665, and, in order to secure the balance due on the purchase price, Watkins gave his note for such balance, payable at $80 per month, in the sum of $1,447.82, which note provided that title to the truck should remain in the payee until it should have been fully paid, and that upon default of any of the installments payee might declare the entire note due and take possession of the truck and sell it, applying the proceeds of the sale on the note. It was alleged that the note became in default, and that thereafter Watkins delivered the truck and trailer to defendant in Mesa, Arizona, and that the defendant, at the time of the action, was in possession thereof without the consent of plaintiff. The latter demanded possession of the truck and trailer from defendant, but, this possession being refused, the action in replevin was filed.
Defendant answered, claiming that the plaintiff had sold the truck to Watkins before the 21st of September under a conditional sale agreement, which was not recorded until the 8th of October, and that on the 21st of September Satkins, being indebted to plaintiff, mortgaged the truck and trailer in question to it, which mortgage was on the 28th of September duly recorded, and that the truck and trailer was delivered to defendant by Satkins by virtue of the mortgage.
The case came on for trial and plaintiff offered in evidence Exhibit A, a note which corresponded with the one set up in the complaint and which contained, among other things, the following provisions:
[50 Ariz. 421] "This notice is given for the balance of the purchase price of one International Motor Truck
"And I hereby agree that the title thereto and all repairs, replacements of and accessions to said property shall remain in the payee until this note shall have been fully paid in money...."
No objection was made to this. It then offered another note, being Plaintiff's Exhibit B, which was in the same general form as the note admitted, but which was for the sum of $788.14, and stated that it was given for the balance of the purchase price of "Model 25 Utility Six-Wheel Attachment with 8.25x20 dual tires and 16x3 Lockheed hydraulic brakes." Defendant immediately objected to the introduction of this note in evidence on the ground that the complaint made no reference thereto but only to a note given for the purchase price of the truck. The court, however, admitted it. Plaintiff then offered a witness who testified that the trailer referred to in the complaint was of a type which was permanently attached to the truck, so that in reality it became a part thereof just as much as one of the truck wheels, although by proper mechanical procedure it was possible to detach it therefrom and to use it in combination with another truck of exactly the same type. It also appeared from the evidence offered by plaintiff that the transaction between it and Watkins was substantially of the following nature: Watkins desired to purchase from plaintiff the truck and trailer in question, but was unable to pay for the same in full, or even to make a partial payment in cash thereon. He was, however, in the possession of another truck and trailer on which he still owed the sum of approximately $400, which he desired to turn in on the price of the ...