Rehearing Denied January 20, 1949.
Appeal from Superior Court, Maricopa County; Levi S. Udall, Judge.
Judgment as modified affirmed with directions to trial court.
Moore, Romley & Roca, of Phoenix, for appellant.
Corbin & Orme and Kramer, Morrison, Roche & Perry, all of Phoenix, for appellee.
Gordon Farley, Superior Judge. Stanford, C. J., and La Prade, J., concur. Justice Levi S. Udall having disqualified himself as he was the trial judge, Honorable Gordon Farley, Judge of the Superior Court of Santa Cruz County, was called to sit in his stead.
Gordon Farley, Superior
[68 Ariz. 118] This action arose out of a contract which the federal government awarded to Arthur Pinner, Jr., on October 10, 1942, to construct army air fields near Douglas, Arizona. Pinner as prime contractor entered into a subcontract with T. J. Smith, who in turn subcontracted with a coadventure comprised of himself, W. M. Tenney and L. N. Tenney. The coadventure of Smith-Tenney proceeded with the construction of the air fields and had completed about 88 per cent of the work when the difficulties ensued which resulted in this litigation.
Pinner became dissatisfied with the manner in which the job was progressing, and after being advised by the government inspectors that the work was not proceeding according to schedule, he ousted Smith from the job, and concluded the work under
an arrangement with the two Tenneys. Smith thereupon filed suit against Pinner and the Tenneys and the bonding company for an accounting and requested appointment of a receiver because of the alleged collusion and fraud that had been used by them to deprive him of his interest in the subcontract. Pinner denied the allegations of wrong conduct, but joined in the request for the appointment of a receiver.
On March 16, 1943, the court denied the appointment of a receiver, but granted an injunction, the effect of which was to sequester the funds and assets of Smith-Tenney and any funds due under the prime contract. Thereafter the court proceeded to disburse by court order the money due under the contract to various persons and in fact performed the duties of a receiver.
On December 14, 1945, the court ordered that on stipulation of counsel the causes be set for trial on February 19, 1946, and that all parties to the action be permitted to file such amended pleadings as they desired. In pursuance of that ...