APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. A. Y. Moore, for Appellant.
Mr. Greg Garcia, for Appellees.
[58 Ariz. 70] ROSS, J.
On or about May 12, 1937, one A. F. McKinney, doing business under the name of McKinney Systems, in San Francisco, California, sold to Perry A. P. Wadlow, doing business under the name of Pierce Cleaners, in Phoenix, Arizona, "One #103-A McKinney Synthetic Solvent Dry Cleaning Unit Complete and Polished," for the sum of $4,195, upon a conditional sales contract, part of the purchase price being paid down and the balance to be paid in monthly installments of $93.25, beginning August 10, 1937, until the whole thereof was paid and, in case any installment was not made when due, said McKinney was authorized to retake the property from the defendant.
Shortly afterward McKinney sold and assigned his interest in the conditional sales contract to the California Steel Products Company, plaintiff herein.
[58 Ariz. 71] The defendant being in default in four monthly installments, on March 3, 1938, plaintiff instituted this action, after, as it alleges, demanding possession of the cleaning unit or in lieu thereof damages in the sum of $4,195, but did not at that time sue out a writ of replevin. Later it caused a writ of replevin to be issued and levied on the cleaning unit and thereafter sold it to itself for $1,500, which sum, less costs of sale, it credited on the purchase price.
In his answer defendant admitted the making of the contract to purchase such cleaning unit at the price named; alleged payments thereon in the sum of $350 cash, $1,000 paid-in value of his Bower cleaning unit, and three monthly installments, amounting to $279.75; admitted the cleaning unit was delivered to him, but alleged that plaintiff and its assignor, McKinney, before and at the time of the execution of the contract represented to him that such cleaning unit was complete, new and polished; that it would clear sixty pounds of clothing in a period of thirty minutes; that it was to be constructed of new material,
and that it had never been used; that the defendant relied upon such representations and believed them to be true, whereas in fact they were untrue and made with the design and intent to defraud and cheat him; that as soon as he discovered that he had been defrauded, to wit, on or about November 10, 1937, he ceased to make monthly payments, offered to return the cleaning unit to plaintiff, and demanded of plaintiff that it return to him his property and all payments made, in the sum of $1,629.75, but that plaintiff refused to accept such offer.
In a cross-complaint defendant re-asserts the fraud allegations of his answer and alleges that on or about the first part of November, 1937, he discovered the cleaning unit was second-hand; that many of its parts [58 Ariz. 72] were worn out and that it was not able to perform as represented; that on or about November 26, 1937, A. F. McKinney (the seller) admitted the cleaning unit delivered to defendant was not the unit called for in the written contract but that the same was a used unit. He alleges he was ready and willing, and so advised plaintiff, to carry out his contract if plaintiff would perform its part thereof by delivering the cleaning unit contracted for; that he did offer to return the cleaning unit to plaintiff and did demand the return of his property and the money paid by him on the contract, but that plaintiff would not accept the offer; that he paid out, or was obligated to pay out, for repairs and adjustments of the cleaning unit, with the knowledge and consent of plaintiff, $791.75, and that he was otherwise damaged, because the unit would not do the work represented, in the sum of $1,500. He alleges other damages but it is not necessary to state them here since the court took them from the jury and no assignment is made on the court's ruling. He prays for the return of his advances, the money paid to repair the unit, and for general and special damages.
The case was tried to a jury and resulted in a verdict in favor of defendant in the sum of $1,750. From the judgment entered thereon and the order denying its motion for a new trial, plaintiff has appealed.
The defendant's evidence is to the effect that as soon as he discovered that the cleaning unit was a used one and would not do the work represented, he told plaintiff to take it, that he did not want it, that he wanted a new unit; that, pending negotiations, plaintiff's agent told defendant "to keep it and go ahead and use it." The effort to adjust the matter continued until February 3, 1938, on which date one of plaintiff's agents called defendant over the telephone from San Francisco and asked him "what he would [58 Ariz. 73] settle for," and defendant ...