EDWARD V. MURPHY, Appellant,
P.A. YEAST, Appellee
APPEAL from a judgment of the Superior Court of the County of Mohave. H.K. Mangum, Judge. Judgment affirmed.
Mr. J.H. Smith and Mr. Charles P. Elmer, for Appellant.
Mr. E. Elmo Bollinger, for Appellee.
[59 Ariz. 282] LOCKWOOD, C.J.
P. A. Yeast, plaintiff, brought suit against J.P. Murphy and Edward V. Murphy to cancel a certain contract entered into between plaintiff and Edward V. Murphy, defendant. The case was tried to the court without a jury, and judgment rendered in favor of plaintiff to the effect that defendant had forfeited any rights under the contract upon which the suit was based, and canceling the contract. Motion for new trial was made and the court set aside the judgment rendered, and briefs were submitted on certain legal questions. Thereafter the court, upon a full reconsideration, reaffirmed its previous decision and entered judgment accordingly, whereupon this appeal was taken.
The facts, taken in favor of the judgment as strongly as are reasonably supported by the evidence, may be stated as follows: On Suptember 1, 1938, plaintiff was the owner of a cattle ranch and outfit in Mohave county, known and referred to as the Spear ranch, including lands held in fee simple, under lease or grazing permit, cattle and horses, and other personal property. Plaintiff also claimed to be the owner of a water right, known as the Patterson well, appurtenant to his cattle outfit. The whole outfit was subject to a purchase money mortgage owned by one L.B. Thorne, which was then being litigated between plaintiff and Thorne, and plaintiff had also entered into a contract with the Malco Mining Company to supply it with water for its mining purposes from the Patterson well, at a fixed price. All of this situation was well known to both defendant and J.P. Murphy. After some preliminary [59 Ariz. 283] negotiations between plaintiff and J.P. Murphy, the father of defendant Edward V. Murphy, a contract was entered into between plaintiff and defendant. After setting up the ownership by plaintiff of the cattle outfit, and giving a full description of both the real and personal property included in the outfit, the contract continued:
"Whereas, vendor has agreed to sell an undivided one-half (1/2) interest in and to the above described property to purchaser, and said purchaser has agreed to purchase the same,..."
The consideration was given as $14,000, payable in installments, $2,722.50 at the execution of the contract, $500 on or before November 6, 1938, which time might be extended to May 6, 1939, and the balance at various times succeeding. The Thorne mortgage was then described and the fact that it was in litigation, and it was provided:
"... that said P.A. Yeast shall satisfy said mortgage, all at his own cost and expense, and without any expense whatsoever to purchaser; that, in such foreclosure proceedings, the Court has made and entered an order appointing J. Leonard Neal Receiver of said above described property, and, that, if such Receiver should qualify as such, any possession agreed to be given to the purchaser of the above described property shall be subject to the order of appointment of said Receiver."
There were other provisions for keeping accurate accounts of the business, and it was then agreed:
"... That purchaser shall receive one-half (1/2) of the proceeds derived from said ranch and property after the deduction of operating expenses as herein-before provided. But, however, the proceeds to which purchaser is entitled shall apply on the above stated ...