APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Reversed and remanded.
Messrs. Patterson & McFate, for Appellant.
Messrs. Morgan & Locklear, for Appellee.
[60 Ariz. 171] STANFORD, J.
On the 11th day of June, 1938, the appellant, John Carl, purchased a small sawmill near Stoneman's Lake from appellee, R. F. McDonald, under a written conditional sales contract, which contract provided, among other things, that the price should be $650, payable in monthly payments of $108, either in cash or in lumber and if lumber was used in making the payments, the price of the lumber was to be $12 per thousand feet of good merchantable lumber. The first payment was due July 11, 1938, and thereafter monthly payments to be made on the 11th day of each and every month.
The latter part of September, before the October payment was due, the appellant was unfortunate in having [60 Ariz. 172] received a sentence to serve 30 days in the Yavapai County jail for driving a motor vehicle while under the influence of intoxicating liquor.
On or about October 1, 1938, Earl Bruce, who was the owner of the land upon which Carl procured his timber, called at the jail and the appellant gave him possession of the mill to finish sawing certain orders for lumber and requested him to make the payment due October 11th, the other monthly payments having been made.
In addition to the three payments of $108 each, the sum of $25.60 had also been made on the October 11th instalment, making a total of $349.60 paid on the purchase
price, which amount was more than one-half of the purchase price of the sawmill.
On the morning of October 11th the appellee, McDonald, went to the Yavapai County jail and saw the appellant. Carl testified that McDonald said at that time, among other things:
"John, I'll tell you, I am going to repossess the mill and when you get out you run the mill the same as ever. I just want to repossess it and to make Earl Bruce quit running it."
The evidence shows that on the 11th day of October appellee sold the sawmill to Bruce without the knowledge and consent of the appellant. The evidence further shows that the appellant had on hand in the yard at the mill 35,000 feet of lumber at the time of the sale to Bruce by appellee. ...