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Amedio v. Canavan

Supreme Court of Arizona

October 10, 1949

AMEDIO et ux.
v.
CANAVAN et ux

There is no question in the minds of the court but that the facts alleged and proved support the judgment rendered in this cause. The judgment is affirmed.

Robert R. Weaver, of Phoenix, for appellants.

Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for appellees.

Stanford, Justice. LaPrade, C. J., and Udall, Phelps and De Concini, JJ., concur.

OPINION

Stanford, Justice.

[69 Ariz. 101] Plaintiffs (appellees) brought action in the trial court alleging in substance that in reliance on certain representations made by defendants (appellants), and known by defendants to be false, plaintiffs purchased for $ 5,000 the good will of the phonograph record and sheet music departments of the Amedio Music Company, owned by defendants. The agreement between the parties

Page 227

provided for the operation of such department by plaintiffs, who agreed to pay the additional sum of $ 4001.05, representing the inventoried cost of the stock of goods [69 Ariz. 102] on hand. It was further agreed that plaintiffs would operate said departments as their own business and would pay all wages, taxes, advertising and other expenses in connection therewith, and pay an additional sum of $ 1,000 per month to defendants when the gross receipts per month exceeded $ 2,000. The original $ 5,000 for the good will of these departments was paid by plaintiffs to defendants, but no payment was ever made for the stock of goods as provided for in the agreement.

We now state the facts adduced at the trial in the light most favorable to plaintiffs. The plaintiffs devoted their full time to the operation of said business from March 3, 1947 to May 17, 1947 and turned over to defendants all moneys received from such operations; that the gross sales of such departments were not as large as had been represented by defendants and that defendants interfered with the operation of such departments. It was further shown that in May, 1947, all parties mutually agreed on a rescission and termination of the agreement and defendants agreed to repay to plaintiffs the $ 5,000 theretofore paid by plaintiffs for the good will. Defendants retook possession of such departments and paid plaintiffs the sum of $ 1,000 to apply on the agreed refund of $ 5,000, but now have refused to pay the balance of $ 4,000. The complaint was for judgment against defendants for $ 4,000.

Defendants filed their answer to the complaint denying the allegations set forth therein, and as an affirmative defense alleged that by threats and intimidations the plaintiffs extorted from the defendants the sum of $ 1,000. Defendants also filed a cross-complaint for the recovery of the $ 1,000 theretofore paid.

The case was tried before the court without a jury. The court entered judgment for plaintiffs in the sum of $ 4,000. There were no findings of fact. From said judgment the defendants gave notice of appeal.

The defendants offer the following three assignments of error:

"1. The Court erred in rendering judgment for plaintiffs the appellees herein, for the reason that the complaint and the allegations ...


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