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May v. Sexton

Supreme Court of Arizona

May 23, 1949

MAY et al.
v.
SEXTON. PETTY et al.
v.
SEXTON et ux

Appeal from Superior Court, Pima County; Evo DeConcini, Judge.

Affirmed.

Glenn Ginn and Otho Books, of Tucson, for appellants.

C. Wayne Clampitt, of Tucson, for appellee.

Thalheimer, Superior Judge. Udall and Stanford, JJ., and Russell, Superior Judge, concur. Phelps, Justice (specially concurring). We also agree with the concurring opinion of Justice Phelps: Udall, J., and Russell, Superior Judge. Note: Chief Justice La PRADE being ill and Justice DeCONCINI having disqualified, the Honorable WALTER J. THALHEIMER, Judge of the Superior Court of Maricopa County, and the Honorable H. L. RUSSELL, Judge of the Superior Court of Coconino County, were called to sit in their stead.

OPINION

Thalheimer, Superior Judge.

Page 574

[68 Ariz. 359] The appellants are two out of three creditors who brought separate actions against the appellees and W. Frank Johnson, also known as W. F. Johnson, and Jane Doe Johnson, his wife, alleging them to be partners in the operation of a cement brick manufacturing business. No service of process being obtained upon the Johnsons, the actions were prosecuted against the appellees alone. On stipulation of the parties the three actions were consolidated and the claims of these appellants fixed at $ 402.94 and $ 327.10, respectively. After a trial to the court without a jury, the court held that no partnership existed and rendered judgment for the appellees. The appellants jointly appeal from this judgment; the plaintiff in the third action does not join in the appeal.

As evidencing the existence of the alleged partnership the appellants rely upon the testimony given at the trial by the appellee, Vernon H. Sexton. In substance, his testimony was that: he was a general contractor engaged in business in Tucson, Arizona; in January, 1946, he was in need of cement blocks or bricks and agreed to purchase them from Johnson and one Stewart who were commencing a cement brick manufacturing business; in February, 1946, on solicitation of Johnson and Stewart, who were short of funds, he paid a pay roll of their business with the understanding that in return he was to receive cement blocks at current market prices to the extent of his advancement as and when such blocks were manufactured; subsequently, on similar solicitation and with like understanding,

Page 575

until April, 1946, when the business [68 Ariz. 360] ceased operating, he paid other pay rolls as well as certain bills for materials for the business, and in all, including the pay roll paid in February, 1946, he advanced sums totaling $ 1200 or $ 1300 without receiving the cement blocks promised in return for such advancements.

The appellants make a single assignment of error, as follows:

"That the trial court erred in holding that the defendants V. H. Sexton and Lillian Sexton were not members of a copartnership between V. H. Sexton and W. F. Johnson as a matter of law in the light of the evidence, and particularly the defendant's V. H. Sexton's own testimony."

To support the assignment, appellants rely upon this quotation from the decision rendered in Eastlick v. Hayward Lumber & Inv. Co.,33 Ariz. 242, 263 P. 936, 938, "that the existence of a partnership depends upon the facts, and whether a partner draws the correct conclusion from them cannot affect its existence in the least." We fail to see the applicability of this correct statement of a legal proposition to the instant situation. Here the trial court doubtless based its judgment upon all the evidence before it, being in no sense bound by any conclusion of appellee Sexton as to whether or not a partnership existed. The trial was before the court without a jury, and the court made no findings of fact. Under such circumstances we must presume that the court ignored immaterial evidence and considered only that which was relevant and competent. We further must presume that the court made all findings necessary to support its ...


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