H. L. GARDNER, Appellant,
C. H. TRIGG, Appellee
APPEAL from a judgment of the Superior Court of the County of Yuma. Wm. G. Hall, Judge. Judgment reversed.
Mr. J. Fred Hoover and Mr. John A. McGuire, for Appellant.
Mr. Ray C. Bennett, for Appellee.
[59 Ariz. 398] LOCKWOOD, C.J.
C. H. Trigg, plaintiff, brought suit against H. L. Gardner, defendant, upon a certain written promise to pay, which is hereinafter set out. Defendant answered, claiming (a) that the promise to pay was conditional only and out of a specified fund which had ceased to exist, and (b) that the obligation had been paid by the sale of certain property. He also filed a cross complaint for goods sold and delivered by him to plaintiff, and later filed a second, third and fourth cross complaint, which last three were stricken by the court.
The case was tried to the court without a jury, and judgment rendered in favor of plaintiff on his complaint and against defendant on the cross complaint, whereupon this appeal was taken.
The written agreement upon which the complaint was predicated reads as follows:
[59 Ariz. 399] "Yuma Arizona
"June 5, 1935
"one year after date, for value received, I promise to pay the Yuma Sand and Gravel Company, a corporation, the sum of $532.60, with interest at rate of 6% per annum from date until paid, payable at Yuma, Arizona, in the manner and from the fund hereinafter specified.
"It is mutually agreed and understood between the maker of this note and the
payee that the maker is employed under a contract of employment by Luke Ellison to operate the sand and gravel business, leased by the said Luke Ellison from the Yuma Sand and Gravel Company, and the said Luke Ellison agrees to pay to the said Yuma Sand and Gravel Company, payee in this note, 40% of the carnings of the said maker of this note as such manager and operator of said gravel plant to be applied as credits hereon, and also to pay to the Yuma Sand and Gravel Company all bonuses or extra payments earned by said maker as credits upon this note. Bothe this note and the employment agreement between maker and said Luke Ellison may be renewed at the end of each year until paid in full, and in the event that said Yuma Sand and Gravel Company pit is sold any unpaid balance on this note shall be cancelled and discharged; should the maker of this note voluntarily quit his employment in said gravel pit, then and in such event, this agreement as to method of payment of this note shall be cancelled and the balance remaining unpaid on this note shall thereupon immediately become due and payable at the option of the holder thereof. Notice of exercise of such option to be given the maker by registered mail, addressed to his last known address.
"The maker of this note waives diligence, presentment and protest and agrees that if the said note not be paid according to the terms and effect thereof and shall be placed in the hands of an attorney for collection, to pay an additional sum of $50.00 in addition to the amount due thereon as an ...