Appeal from Superior Court, Mohave County; Levi S. Udall, Judge.
Suit by Ben Burney against J. M. Smith and Perry A. Yeast for accounting of the proceeds of defendant Yeast's sale of his lands and cattle thereon to defendant Smith, conversion of plaintiff's asserted half-interest in such cattle by defendant Smith, injunction against sale of cattle, and accounting of the proceeds of cattle sold by defendant Smith, in which Perry A. Yeast, Jr., intervened and filed a cross-complaint for accounting of the proceeds of the sale of cattle to defendant Smith. From the judgment entered, plaintiff appeals.
Carl D. Hammond, of Kingman, for appellant.
Cunningham & Carson, of Phoenix, for appellee Perry A. Yeast, Jr.
E. Elmo Bollinger, of Kingman, for appellee J. M. Smith.
Stanford, Chief Justice. LaPrade and Morgan, JJ., concurring.
[64 Ariz. 187] Stanford, Chief Justice.
Appellant, plaintiff below, brought suit against J. M. Smith and P. A. Yeast seeking a money judgment, an accounting and for other relief. At the time summons was issued service could not be had upon Yeast. Service was had upon Smith, who answered. Thereafter Perry A. Yeast, Jr., who had succeeded by assignment to the interest of P. A. Yeast, voluntarily appeared by way of interpleader, filed an answer and cross-complaint. The fact situation out of which the controversy arose is as follows:
Prior to February, 1941, P. A. Yeast (assignor) owned and controlled considerable range land in Mohave County, Arizona. In addition to his deeded lands, he had numerous leases and federal grazing permits. At this time his ranch being understocked, he entered into an oral agreement with the appellant whereby it was agreed that they would purchase some Mexican cattle at El Paso, Texas. The exact number purchased was 1,466 head. After the cattle were imported, they were branded 7-Y, a brand belonging to the appellant. The cattle were then shipped to the ranch of Yeast in Mohave County. The oral agreement under which the cattle were purchased was later reduced to writing but was not finally executed until the following September. This agreement, in part, is as follows:
"Witnesseth: That whereas, the second party is the owner and lessee of ranches, and ranges in Mohave County, Arizona, known as the 'Old Spear Ranch' and the 'Old East' or 'Gold Basin Ranch,' and also is the owner of certain cattle thereon in which first party has no interest, and
"Whereas, there are now located on said ranches approximately one thousand four hundred sixty-six head of steers branded 7-Y on the left hip and which cattle are owned by second party and first party under an arrangement providing for an equal division of the profits thereon, and which cattle were purchased by the parties hereto at a total cost of Forty-eight Thousand Two Hundred Fifty-nine Dollars ($ 48,259.00), said amount including the original cost of said cattle, the freight thereon and interest on such sum at five and one-half per cent
per annum to July 23, 1941, and which said sum, together with interest thereon from the said 23rd day of July, 1941, until paid is owed to The Valley National Bank of Phoenix, Arizona, secured by a mortgage upon all of the ranches of second party and upon the steers ...