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Bracker Stores, Inc. v. Wilson

Supreme Court of Arizona

June 6, 1940

BRACKER STORES, INC., a Corporation and JOSEPH G. BRACKER, and DAVE LEVY and FANNY LEVY, Husband and Wife, and HYMAN DAVISON and JUSTINE DAVISON, Husband and Wife, Appellants,
v.
J. C. WILSON, Appellee

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. Howard C. Speakman, Judge. Affirmed in part; reversed in part with directions.

Mr. Duane Bird and Mr. Thomas L. Hall, for Appellant.

Messrs. Bilby & Shoenhair and Mr. Harold C. Warnock, for Appellee.

OPINION

[55 Ariz. 404] ROSS, C.J.

The plaintiff, J. C. Wilson, brought this action against Bracker Stores, Inc., a corporation, Charles J. Bracker and Joseph G.

Page 254

Bracker, and alleged in the complaint that these defendants, "operating a business under the name of Bracker Vegetable Sales Company," had given their two promissory notes for $1,000 each to Alicia Alcalde, and that Alicia Alcalde had assigned and endorsed them to plaintiff after they were past due.

For a second cause of action it was alleged that defendants owed said Alicia Alcalde on an open account the sum of $414.13, which had been incurred while defendants were acting as the agent of Alicia Alcalde in marketing vegetables and other produce for her, [55 Ariz. 405] and that said open account had been assigned to plaintiff.

Defendants first filed a motion to strike certain portions of the complaint. Whether defendants were serious or not in making this motion, we have no hesitancy in holding the court properly overruleld it. It was directed at vital and necessary allegations and so many of them that, had it been granted, little except the names of the parties would have been left.

Defendants moved also that plaintiff be required to make his complaint more definite and certain by stating whether or not the endorsement and assignment of the notes and the assignment of the open account were made for "a valuable consideration." This motion was, of course, properly denied.

The defendants' general demurrer to the complaint was overruled. Of this ruling more will be said later on.

Defendants in their answer admit the allegations of citizenship and residence of the parties "and (the allegation) as to the execution of the promissory notes... but deny each and every other allegation...." The allegation of the complaint as to the execution of the notes which were admitted was as follows:

"That on June 14, 1935, for a valuable consideration, to-wit: the sum of Two Thousand ($2,000.00) Dollars, the defendants made, executed and delivered two certain promissory notes, each dated June 14, 1935, and each in the principal sum of One Thousand ($1,000.00) Dollars, said notes being in words and figures as follows, to-wit:

"'$ 1,000.00

No. 2.

June 14, 1935


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