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Jacob v. Cherry

Supreme Court of Arizona

May 5, 1947

JACOB
v.
CHERRY et ux

Rehearing Denied June 17, 1947.

Appeal from Superior Court, Maricopa County; James A. Walsh, Judge.

Judgment on first count of cross-complaint reversed and count dismissed without prejudice, and judgment otherwise affirmed.

John M. Levy, of Phoenix, for appellant.

Armstrong & Spector, of Phoenix, for appellees.

Stanford, Chief Justice. LaPrade and Udall, JJ., concurring.

OPINION

Stanford, Chief Justice.

[65 Ariz. 308] Action was brought in the Superior Court by appellant, hereinafter called plaintiff, against defendants for damages resulting from a violation of an oral contract entered into about September 1, 1945, between the parties.

Plaintiff's complaint alleges the employment of defendant, Frank Cherry, on a commission basis for the purpose of selling, buying and exchanging trailers for plaintiff, and alleges that the business was to be conducted on premises owned by plaintiff at 310 North 20th Street, and certain lots on East Van Buren Street, Phoenix, Arizona; that plaintiff obtained, in his name, a license from the Arizona Highway Department, Motor Vehicle Division, and from the Arizona Tax Commission under which said business was to be conducted.

It is the claim of plaintiff, however, that it was originally agreed between the parties that the business should be a partnership, plaintiff to contribute $ 4,000 and defendants to contribute a similar amount at the commencement of the business, but that defendants were unable to raise the necessary cash, and later an agreement was entered into whereby plaintiff was to furnish all money and defendants contribute only their services, the latter to be paid on a commission basis as aforesaid. Plaintiff also asked for injunctive relief and an accounting for all [65 Ariz. 309] trailers sold by defendants subsequent to alleged an oral partnership agreement to last

Page 218

September 1, 1945. Defendants, by answer, for one year commencing September 1, 1945, whereby plaintiff was to furnish the money for their operations and to procure the licenses mentioned. Defendants were to give their full time to the business and that all profits and losses were to be shared equally.

Also defendants filed a cross complaint asking judgment on three claims, the first claim being from $ 500 for agreed profits due them for the months of September and October, 1945, and $ 492.50 as and for their share of profits for sales of trailers made by plaintiff after the partnership had been terminated by the acts of the plaintiff on November 1, 1945; a second claim for $ 5,696.46 as anticipated profits of the partnership business had it continued, as originally agreed, to August 31, 1946; and a third claim for $ 350 as and for damages for conversion by plaintiff on November 14, 1945, of one certain homemade trailer alleged to belong to the defendants.

The case was tried without a jury and the trial court by its judgment found for the defendants and against the plaintiff on his complaint and from this part of the judgment the plaintiff did not appeal. The court then rendered judgment for the defendants on their cross complaint in the sum of $ 776 on the first claim; that nothing be taken by defendants against the plaintiff on the second claim; and judgment for the defendants on the third claim in the sum of $ 200. From the ...


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