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DeMund v. Oro Grande Consolidated Mines

Supreme Court of Arizona

January 3, 1941

CHARLES W. DeMUND and L. D. DeMUND, Appellants,
v.
ORO GRANDE CONSOLIDATED MINES, a Corporation, Appellee

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Mr. Theodore G. McKesson and Mr. Francis M. Sasse, for Appellants.

Messrs. Patterson & Eastvold, Mr. Yale McFate, and Mr. Frank E. Flynn, for Appellee.

OPINION

Page 771

[56 Ariz. 460] LOCKWOOD, J.

This is an action by Oro Grande Consolidated Mines, a corporation, plaintiff, against Charles W. and L. D. DeMund, defendants, to recover damages for the destruction by fire of certain buildings upon property owned by plaintiff. The case was tried to the court sitting without a jury, which rendered judgment in favor of plaintiff for $800, which was afterwards on a remittitur damna reduced to $600, and this appeal was taken.

The facts necessary to a determination of the appeal, with the exception of one matter which we shall discuss at the proper time, are not in dispute and may be stated as follows: Plaintiff was the owner of certain mining claims situated in Yavapai county, Arizona. Upon these claims were a number of buildings such as are usually constructed for operating a mine. On September 17, 1937, plaintiff leased the premises to defendants. The lease is lengthy and goes into considerable detail, but only two clauses thereof are material in the present action. They are obligations placed upon defendants, and read as follows:

"8. Fire Insurance.

"To have issued and maintain during his occupancy fire insurance in favor of Lessor on all buildings and machinery now on the property and to pay premiums thereon, said fire insurance to be carried for seventyfive (75%) per cent of the amounts shown as values on the attached inventory.

"Removal of Lessees' Property.

"... Provided, however, that buildings, equipment, tools, etc., belonging to Lessor as shown on inventory attached hereto and made a part of this agreement, shall be left upon the property in the same condition as when received by Lessors except for reasonable wear, and in case of loss or unreasonable damage [56 Ariz. 461] Lessees hereby agree to compensate Lessor before removal of Lessees' property."

At the time of the signing of the lease, the inventory mentioned in the clauses above set forth had not been made and was not attached to the lease.This, however, was by the mutual consent of both parties, it being understood that the inventory should be agreed upon as soon as possible thereafter. A few days before October 2d one of defendants went upon the premises, together with an insurance agent, and listed the property to be covered by fire insurance. After returning to Phoenix, they placed a tentative valuation upon the various buildings and the contents, and a copy of this listing in full detail was forwarded to plaintiff. Contained therein were the following items:

"Cooks

Southeast of hoist

dwelling

about 300'

50.00

"Boarding

South of Cooks

house

dwelling

75.00"

The evidence shows that the item listed as "cooks dwelling" was what is referred to in the pleadings as "office building." On October 15th plaintiff replied to this letter, not questioning the inventory so far as the description of the property was concerned, but suggesting that the valuation on two of buildings, one of which was the boarding house, was too low. This letter, for some reason, was not received by defendants until around 11 o'clock the morning of October 18th, while the two buildings referred to had been completely destroyed by fire during the night of the 17th, or early morning of the 18th. Defendants immediately, upon receipt of this letter, placed fire insurance on the remaining buildings. Plaintiff brought suit to recover the value of the two buildings destroyed, setting up three causes of action, the first based on negligence, the second on the general provision of the [56 Ariz. 462] lease, as above set forth, andthe third on the nonfulfillment of the covenant to procure fire insurance. After various preliminary motions were ruled upon, the case came on for hearing. At the close of plaintiff's case, defendants moved to require plaintiff to elect which cause of action it was proceeding upon, and demurred to the complaint for improper joinder of causes of action. The ...


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