APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs. Phillips, Holzworth & Phillips and Mr. David P. Jones, for Appellant.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellees.
[56 Ariz. 182] LOCKWOOD, J.
This is an appeal by Valley Gin Company, a corporation, hereinafter called defendant, from a judgment in favor of Neil S. McCarthy and Marguerite McCarthy, his wife, hereinafter called plaintiffs. For the purposes of the appeal the facts shown by the record may be assumed to be as follows:
Plaintiffs were the owners of certain land set forth in the complaint, and on February 11, 1937, they leased it to one B.F. Wells, hereinafter called the lessee, for a period of one year from March 1, 1937. The lease provided it was based on an acreage of 225 acres, and it was contemplated by the parties, among other things, [56 Ariz. 183] that there would be a mortgage of the crops grown. The lease, therefore, contained the following provisions:
"... and the lessee covenants and agrees not to permit any lien, charge or encumbrance, of any nature or kind, to accrue against said leased premises... except the hereinafter mentioned crop and chattel mortgage liens.
"... it is anticipated that there will be financing of this acreage and the owner agrees to sign a waiver against any loan on the crops being grown, for a loan of not to exceed $20.00 per acre each year."
The land in question was to be irrigated from pumps, and it was provided by the lease:
"... However, it is understood between the parties hereto and the lessors hereby covenant and agree that they will, within forty (40) days from the time of the signing of this lease, repair said pumps so that they will produce at least 2250 gallons per minute, and shall also, within said time, install a new motor starter on the well where the worn-out starter is now located."
Lessee went into possession of the premises and found it necessary to finance himself by mortgaging the crop, as provided in the lease. The matter was taken up with plaintiffs, and on February 16 the following letter was sent to the lessee:
"Dear Mr. Wells:
"The lease agreement between us... contains a provision... that there will be financing of this acreage and that I shall sign a waiver against any loan on the crops being grown for a ...