It is ordered that the judgment of the trial court be reversed and the cause remanded for a new trial.
Samuel C. Jefferies, of Phoenix, Leslie Parry, of Phoenix, attorneys for appellant.
Cox, Lockwood & Lockwood, of phoenix, attorneys for appellee.
Phelps, Justice. La Prade, C. J., and Udall, Stanford, and De Concini, J., concur.
[69 Ariz. 127] This is an action in replevin instituted by George L. Williams as plaintiff (appellee herein) against Thomas J. Coffey, doing business as Truckers' Service Station, defendant (appellant herein), to recover possession of a certain truck upon which
appellant had done some repair work. We will hereafter refer to said parties as plaintiff and defendant as they were designated in the trial court.
During the month of September, 1946, plaintiff engaged defendant to repair the truck in question, described as a Dodge 1941 pickup. Some trouble arose over a dishonored check given defendant by plaintiff but this was later settled satisfactorily. Plaintiff again in October, 1946, had defendant to do some further repair work upon said truck, the cost of which amounted to $ 23.80, and not having the funds with which to pay for said repairs, entered into an agreement with the defendant to assign, and did assign, the title to said truck to defendant as security for said repairs and according to defendant's testimony, said assignment was to secure a loan of $ 125 to [69 Ariz. 128] plaintiff in addition to the charge for truck repairs. Plaintiff denies that he borrowed any money from defendant. There is a conflict in the evidence as to when the amount due defendant was to be repaid. Defendant claims that plaintiff stated if he were not back the following day to repay the amount of the repair bill plus the $ 125 that defendant loaned him, the truck was to belong to defendant. Plaintiff claimed that there was no time stated when the service charge should be paid. Defendant permitted plaintiff to take the truck out of the garage and to continue to use it in his business. Plaintiff did not return to the shop so far as defendant knew for something over a month. Then only after defendant had gone to plaintiff's home on East Pierce Street in Phoenix, Arizona, and taken possession of the truck and brought it to his garage.
At the time plaintiff assigned the title to the truck to the defendant he also turned over to him a conditional sales contract for the truck which showed a balance due thereon to the finance company of $ 68.88 which defendant paid. Defendant prior to the time the truck was relocated and without foreclosing his lien on the truck, had taken the title theretofore assigned to him by plaintiff, to the State Highway Department and had the title issued in the name of Truckers' Service Company. The evidence is in conflict as to whether plaintiff tendered defendant the amount he owed him before bringing the action. In the light of the conclusion we have reached, this is immaterial. The evidence further shows that defendant had spent some ten or twelve hundred dollars on repairing said truck after he acquired possession thereof.
The complaint simply alleged that plaintiff was the owner of the truck in question together with certain clothing which he claims was in the truck at the time it was taken by defendant and was entitled to the possession thereof, that it was wrongfully withheld from him by defendant and that it was not held under any lawful writ or process and asked for its return or its value which he placed at the sum of $ 1,000 and for damages at $ 20 per day. The defendant answered by filing a general denial. No bond in replevin was placed with the officer and no affidavit was filed with the court pursuant to the replevin statutes to enable plaintiff to procure possession of the truck. The truck therefore remained in the possession of the defendant at all times until the trial. The cause was tried to the court without a jury. The issues were found in favor of the plaintiff, and judgment entered accordingly. From said judgment and the order denying defendant's motion for a new trial an appeal has been prosecuted to this court.
The defendant has presented six assignments of error, the substance of which is (1) that the court erred in finding the issue as to ownership in favor of the plaintiff and against the defendant for the reason that there was insufficient evidence to support [69 Ariz. 129] such finding; (2) that it erred in finding the value of the truck to be $ 1,000 for the reason there was no evidence to sustain such finding; (3) that the alternative judgment rendered by the court in favor of the plaintiff was not justified under the law; and (4) that the court erred in permitting plaintiff to introduce evidence showing the circumstances under which defendant came into possession of title to said truck.
We have consistently held that where the evidence is in conflict or where a judgment is ...