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Allen v. Whiting

Supreme Court of Arizona

November 24, 1941

HERBERT ALLEN, Appellant,
v.
B. S. WHITING, Appellee

APPEAL from a judgment of the Superior Court of the County of Navajo. John P. Clark, Judge. Judgment affirmed.

Mr. W. E. Ferguson, for Appellant.

Mr. Guy Axline and Mr. F. Ray Brown, for Appellee.

OPINION

[58 Ariz. 274] LOCKWOOD, C.J.

This is an appeal from a judgment of the superior court of Navajo County making a partnership accounting between B. S. Whiting, plaintiff, and Herbert Allen, defendant. The undisputed facts may be stated as follows:

On November 25, 1938, and agreement was entered into between Allen, Whiting and one Ted M. Rasco, dissolving a partnership theretofore existing between Allen and Rasco, and creating a new partnership between Allen and Whiting, the latter purchasing the interest of Rasco in the previous partnership. The agreement stated that the partnership assets of Allen and Rasco were as follows:

"That the partnership assets between the parties of the first and second part now consist of fifty-eight (58) head of cows branded A Bar X (A-X) and ZZ (ZZ), and twenty-nine (29) head of calves branded ZZ (ZZ); camp equipment; one wagon; a pack outfit; two (2) mules, one branded ZZ (ZZ) and one unbranded; four (4) geldings; one (1) mare; harness; and miscellaneous tools";

[58 Ariz. 275] and that Whiting purchased Rasco's interest therein for $825. It was stipulated in regard to the new ownership as follows:

"That the party of the first part shall include in the assets of said joint venture his interest in the former partnership with the party of the second part; and the party of the third part shall put into such joint venture the partnership assets of the party of the second part this

Page 241

day purchased from the party of the second part by the party of the third part."

On January 28, 1939, Allen and Whiting divided a certain portion of the assets of the partnership set forth as above. Whiting took approximately twenty-three head of cattle branded ZZ, Allen taking Twenty-two (22) head in the same brand. In addition Allen took to his range all of the cattle branded A-X, being some twenty-five (25) in number, but Whiting contends this last was not done as a division of assets but merely for the purpose of pasturage. There was also some five or six cattle in the two brands which were left on the range. On November 1, 1939, Whiting brought this suit for a dissolution of the partnership and an accounting. Allen answered admitting the partnership, but claiming that it had been dissolved and its affairs settled by the division of assets on January 28, as above set forth, and alleging as an affirmative defense that the A-X cattle had been included as an asset of the partnership by a mutual mistake of the parties, and that Whiting had no interest therein, notwithstanding the terms of the partnership agreement. In support of this defense he offered in evidence what is known as a "partido agreement" with one J. C. Carlisle, dated February 26, 1935. The vital part of this agreement is as follows:

"The party of the first part agrees to furnish to the party of the second part, the following decribed range stock, and the party of the second part agrees to care [58 Ariz. 276] for them the same as they were his own. He agrees to see that they have feed, salt and pay taxes, and at the end of six (6) years, the party of the second part agrees to turn to the party of the first part two head for each one received. The party of the first part further agrees to deliver this stock free of any lien or incumbrance:

Old Cows

5 Head

Young Cows

17 Head

1 Year Old

7 Heifers

2 Yearling

2 Steers

1-2 Year Old

1 Steer

7-Calves

7 Head

1-Bull

1 Head


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