APPEAL from a judgment of the Superior Court of the County of Gila. E. W. McFarland, Judge. Judgment affirmed.
Mr. Frank H. Swenson and Mr. Frederic A. Shaffer, for appellant.
Mr. Rouland W. Hill, for Appellee.
[53 Ariz. 323] LOCKWOOD, J.
Sid W. Ellery, hereinafter called plaintiff, brought suit against James Poulos, hereinafter called defendant, for an accounting of an alleged joint adventure of plaintiff and defendant in the purchase of 400 shares of the capital stock of the Shattuck Denn Mining Company. Defendant answered, denying that there ever was any joint adventure, and further alleging that all of the dealings of plaintiff in regard to the Shattuck Denn stock aforesaid had been terminated by mutual agreement in the year 1932, wherein plaintiff renounced any interest in any of the stock mentioned in the complaint. Defendant then counterclaimed for certain money which he alleged was due from plaintiff as a result of the transaction above referred to. The case came on for trial before the court sitting without a jury, and various evidence, oral and documentary, was presented, the case then being taken under advisement. Eventually the court made findings of fact, among which were the following:
"(1) That plaintiff and defendant, on March 15, 1931, entered into an agreement of joint adventure under [53 Ariz. 324] the terms of which they were to purchase four hundred (400) shares of the capital stock of the Stattuck Denn Mining Corporation for the purpose of holding said stock and participating equally in the profits or sharing equally in the losses from a subsequent sale thereof.
"(2) That in pursuance to said agreement and on said March 15, 1931, plaintiff and defendant purchased four hundred (400) shares of said stock and paid therefor the sum of two thousand two hundred twenty-five dollars ($2,225.00)."
"(8) That on January 21, 1937, defendant repudiated said agreement and gave notice thereof to plaintiff. Such notice was the first notice plaintiff had received from defendant of said repudiation."
"(10) That said agreement of March 15, 1931, had not been terminated and was in full force and effect up to the time defendant repudiated it on January 21, 1937."
The court also found that both parties made various payments on account of the joint adventure, and that the stock in question had been sold by defendant for the sum of $9,600, and that plaintiff's share thereof, after the deduction of certain credits due defendant, was $3,500.87, together with interest from January 30, 1937. Judgment was then rendered in favor of plaintiff in accordance with the findings for the amount above set forth, whereupon this appeal was taken.
There are ten assignments of error, grouped under several propositions of law, but we think they all amount to but one thing, and that is, that the evidence did not sustain the findings of the trial court, for if these findings are correct, we think there can be no doubt that the judgment followed as a matter of law therefrom.
We have examined the reporter's transcript and the documentary evidence carefully. Taking them in the strongest manner in support of the judgment, [53 Ariz. 325] as under our oft repeated rule we must consider them, they show the following facts:
In March of 1931, plaintiff was manager of the Miami branch of the Old Dominion Bank, in Miami, Arizona, while defendant was in business in Miami and a customer of said bank. He and plaintiff had for many years been good friends and close business associates. At that time the two parties agreed to purchase together 400 shares of Shattuck Denn Mining Company stock, participating equally in the profits of such purchase, and in the losses if there were any. The parties did not have enough money to pay for the 400 shares in question, and plaintiff thought it unadvisable, for various reasons, that he should borrow from his own bank, so the purchase was made in the following manner: Plaintiff contributed $200.00, and defendant $400.00 in cash, and $525.00 was borrowed from plaintiff's bank by defendant, the latter giving as collateral security 200 shares of Shattuck Denn stock which were purchased with the $600.00 contributed by himself and plaintiff and the $525 borrowed from the bank, as aforesaid. At the same time ...