HENDERSON et al.
McCORMICK et al
Judgment reversed and cause remanded with directions to dismiss the amended complaint.
Snell, Wilmer, Walsh, Melczer & Beauchamp, of Phoenix, for appellants.
Edward B. Ashurst, of Wickenburg, for appellees.
Faires, Superior Judge. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concur. Justice M. T. Phelps being disqualified as he was the trial judge, the Honorable C. C. Faires, Judge of the Superior Court of Gila County, was called to sit in his stead.
Faires, Superior Judge.
[70 Ariz. 20] The plaintiffs (appellees) as property owners and taxpayers of the Town of Wickenburg, a municipal corporation, brought this action in the Superior Court against William J. Henderson and Taylor Henderson, David J. Jones, Russell E. Stone, Oliver Heuloth, Ed C. Hill, Bernard Hill, and the Town of Wickenburg, a municipal corporation. William J. Henderson was sued as an individual, Taylor Henderson as an individual and as a member of the Town Council, and Bernard Hill as the Town Clerk. The remaining individual members were sued as members of the Town Council of the Town of Wickenburg.
The amended complaint alleges that while defendant Taylor Henderson, the uncle of defendant William J. Henderson, was a member of the Town Council in April of 1947, defendant William J. Henderson "did buy and purchase * * * from the Town of Wickenburg for the use and benefit of himself and his uncle
Taylor Henderson, copartners, doing business under the name of Henderson Plumbing and Supply Company," a certain 1936 Chevrolet truck in violation of Section 12-401, A.C.A.1939. It is further alleged that Bernard Hill, Taylor Henderson, and [70 Ariz. 21] William J. Henderson conspired to violate the laws of the State of Arizona and that in furtherance of said conspiracy Bernard Hill as Town Clerk sold and conveyed the truck to William J. Henderson, one of the joint conspirators. The remaining defendants as members of the Town Council were alleged to have ratified and approved the said sale, it being alleged that said motor vehicle was sold pursuant to said conspiracy for use by said copartnership, and that the reasonable rental value of the said truck was $ 10 per day. This was followed by an allegation that the town had been deprived of the rental value and use of said truck to its damage in the sum of $ 850. Exemplary damage in the sum of $ 50,000 was sought. Judgment was prayed not only for monetary damages but for a decree directing the return of the truck to the Town of Wickenburg.
In answering the amended complaint defendants admitted that at the time this sale was made to William J. Henderson, Taylor Henderson and William J. Henderson were copartners engaged in the plumbing business; that the plaintiffs are taxpayers of the Town of Wickenburg; that the town owned the truck; that it was sold to William J. Henderson and was used by him; and that the council approved the sale. The answer sets up the defense that the plaintiffs failed to state a claim upon which relief could be granted; and that the plaintiffs did not have the capacity to maintain their action on the merits. Defendants specifically denied that any of the acts charged against them were illegal or unlawful or were done for any unlawful purpose and denied generally all of the other allegations of the complaint, and allege affirmatively that as the truck was not serviceable the sale of it was in the interest of the town.
The trial was before a jury and upon its conclusion the court granted a motion for a directed verdict made by defendant Bernard Hill, the town clerk, but denied the motion as to the remaining defendants. The court submitted the case against the other defendants to the jury upon a special interrogatory as to the interest of defendant Taylor Henderson and for a general verdict on the question of damages.
The jury by its answer to the special interrogatory found that Taylor Henderson, a member of the Town Council, was interested, either directly or indirectly, in the purchase of the truck, but in their general verdict they found that no damages had been sustained by the plaintiffs and otherwise found generally for the defendants. Judgment was entered adjudging that the sale of the truck by the town to defendant William J. Henderson was void and ordering that the truck be restored and returned to the Town of Wickenburg by defendants William J. Henderson and Taylor Henderson.
It appears from the evidence that the truck in question, by reason of its defective [70 Ariz. 22] mechanical condition, had been out of commission for about four months prior to the sale, and that extensive repairs would have been required to place it ...