APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment reversed and case remanded with instructions.
Messrs. Gilmore & Herring, for Appellant.
Mr. James J. Caretto and Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellees.
[57 Ariz. 218] LOCKWOOD, C.J.
This is an appeal by Maurice Ilitzky, plaintiff, from an order sustaining a motion to dismiss a complaint, denying leave to amend, and dismissing the action against Henry Goodman and Friendly Loan & Finance Company, a corporation, defendants. The action was for an alleged libel. Defendants move to dismiss the original complaint on the ground that it failed to state a claim against them on which relief could be granted. The motion was duly argued and finally granted, whereupon plaintiff moved for leave to file an amended complaint which was presented to the court for consideration, and the motion was denied on the ground that the amended complaint did not and could not state a cause of action, and on September 14, 1940, the action was finally dismissed.
The question before us then is whether the court erred in refusing leave to file the amended complaint, for if it did the judgment of dismissal cannot be sustained. We consider then whether the amended complaint presented to the court did state a good cause of action. It sets up, in substance, the following facts which, for the purpose of the appeal, we must assume to be true. Plaintiff was engaged in the furniture business in Douglas, Arizona, during the years 1938 and 1939, and for some time prior thereto. Among his regular customers was one Dan Maxon, and during the years mentioned the latter purchased a considerable amount of furniture from plaintiff either for cash or on open account. On May 29, 1940, Maxon was not indebted to plaintiff in any amount, having completely paid any charges which had been made against him by plaintiff, and at no time had he executed a conditional sales contract for goods purchased from plaintiff. On the date last mentioned defendants wrote the following letter to Maxon:
[57 Ariz. 219] "Dan Maxon
"1429 A Avenue
"Dear Mr. Maxon:
"We have purchased from the United Trading Stores, Incorporated of Phoenix, Arizona, a Conditional Sales Contract (x) Open Account ( ) dated 10-10 1939, in the amount of $90.00 Dollars for furniture, or appliances purchased by you from American Furniture Store (Dealer) at Douglas, Ariz.
"This is to advise you that payments due on your account are payable only to Business Mens Protective Ass'n at 533 10th St., Douglas, Ariz., (Friendly Loan & Finance ...