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Levandoski v. ford

Supreme Court of Arizona

October 17, 1938

JOHN LEVANDOSKI, Appellant,
v.
GEORGE O. FORD, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Levi S. Udall, Judge. Judgment affirmed.

Mr. V. L. Hash, for Appellant.

Mr. J. S. Wheeler, for Appellee.

OPINION

McALISTER, C.J.

George O. Ford brought an action against John Levandoski in which he sought to recover the value of certain personal property belonging to him but which he alleges the defendant converted to his own use, and from a judgment in his favor, as well as the denial of his motion for a new trial, the defendant appeals.

[52 Ariz. 455] The substance of the complaint is that on or about the 2d of February, 1937, the plaintiff was the owner and entitled to the immediate possession of certain personal property in the basement of a building belonging to him located at the northwest corner of Central Avenue and Jefferson Street in the City of Phoenix; that some time subsequent to the 16th of February, 1937, the defendant, without plaintiff's knowledge or consent, wrongfully and unlawfully removed all this property from plaintiff's premises and converted it to his own use and benefit; and that he was damaged thereby in the amount of $295. The property involved, together with its value, was, according to the complaint, linoleum floor covering, $110; certain lights and light fixtures, $50; an electric switch box, $75; other electrical attachments, $25; and one window and sash, $35.

The defendant demurred generally to the complaint and denied each of its allegations. The court overruled the demurrer and following a trial rendered judgment for the plaintiff in the sum of $250, its action being based on these findings:

"That the plaintiff is the owner of certain premises located on the Northwest corner of Central Avenue and Jefferson Street in the city of Phoenix, and that on or about the month of February, 1937, and for a long time prior thereto, the defendant was a tenant of the plaintiff in said building, and that said tenancy terminated on or about the first day of March, 1937.

"That at the time of the termination of said tenancy, plaintiff and defendant, not being able to agree on a settlement, agreed to call in a disinterested party to assist in arriving at a settlement; that it was finally agreed between plaintiff and defendant that the defendant was to pay plaintiff $40.00 in cash, and to leave on said premises as plaintiff's property, the personal property described in plaintiff's complaint.

"That after making said final settlement the defendant retained possession of the key to said premises and without the knowledge or consent of plaintiff, [52 Ariz. 456] wrongfully removed from said premises certain personal property belonging to plaintiff, and converted the same to his own use and benefit.

"That the Court finds the reasonable value of the personal property to be the sum of $250.00."

The case was heard by the court without a jury and the facts out of which the action grew were shown to be substantially these: The plaintiff was the owner of a

Page 282

building in Phoenix on the northwest corner of North Central Avenue and Jefferson Street, and in August, 1935, through one Roy Hislop, leased a portion of its basement to one Jack Hightower or rather permitted an assignment to him of a lease of the premises then held by one Abe Fishman, the defendant guaranteeing at the time all payments of rent. After taking possession of the premises the lessee made some improvements in them and these were paid for out of moneys loaned Hightower by ...


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