Judgment reversed with instructions.
Baker & Whitney, of Phoenix, John G. Evans, of San Francisco, California, for appellants.
Jennings, Strouss, Salmon & Trask, of Phoenix, for appellee J. C. Higgins.
Douglas H. Clark, of Phoenix, for appellee Harold Freeland.
Phelps, Justice. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concur.
[70 Ariz. 220] The parties will be referred to in this opinion as plaintiffs and defendants according to the record in the trial court.
Plaintiffs were engaged in construction work in a number of western states as a copartnership under the names of Guerin Brothers with their principal place of business located in San Francisco, California. They also buy, sell, repair, recondition and rent equipment including caterpillar tractors used in heavy construction work.
[70 Ariz. 221] In March, 1947, plaintiffs filed two separate replevin actions in the Superior Court of Maricopa County, one against defendant Harold Freeland, to recover possession of a caterpillar tractor serial No. 1H949, and one against J. C. Higgins seeking possession of a caterpillar tractor, serial No. 1H2862. They took possession of both tractors but defendant Higgins filed a forthcoming bond and retained possession of the tractor involved in that cause of action. The two causes of action were consolidated for trial and by stipulation the records were consolidated on this appeal.
The amended complaints upon which plaintiffs went to trial contained the usual allegations required in an ordinary replevin action, alleging that plaintiffs were the legal owners of the tractors in question and that they were entitled to the possession thereof and that defendants wrongfully retained possession of the same and asked for their possession or for their value and for damages for their wrongful detention.
Defendants filed similar answers denying the material allegations of the complaints except that they admitted that they were in possession of the equipment described in the respective complaints and alleged as affirmative defenses that in November, 1945, one Vergil Grove of Los Angeles had, by written agreement, purchased the equipment involved from the plaintiffs upon the terms and conditions set forth in said written agreement; that Grove sold the equipment to one J. F. Hood (Blythe, California) through whom defendants derived their title; and as a further separate defense they alleged plaintiffs were estopped to claim ownership of said tractors because they had given possession thereof to Grove under circumstances which would induce him and others to believe that he was the owner thereof and had the right to transfer title thereto to others; and as a further separate defense they alleged that the price plaintiffs charged Grove for such equipment were in excess of the ceiling price established by the Office of Price Administration and that consequently said contracts of sale were illegal and void and that a subsequent written agreement between plaintiffs and Grove for the rental of the same equipment was likewise illegal and void because it was in violation of the Emergency Price Control Act of 1942 as amended, 56 Stat. 23, Title 50 U.S.C.A. Appendix, § 901 et seq.
Defendants further filed cross complaints against plaintiffs incorporating therein in substance the allegations contained in the affirmative defenses above set forth and alleged that plaintiffs, cross-defendants therein, had wrongfully, wilfully, maliciously and oppressively filed the instant causes of action for recovery of possession of said tractors and threatened to and did take possession of said property which made it necessary for defendants to incur large expenses as a result thereof and prayed for the recovery of compensatory and punitive damages.
[70 Ariz. 222] Plaintiffs denied generally and specifically all of the allegations of the cross complaint except that they admit they demanded possession of the tractors in question and assert that they in good faith prosecuted the instant causes of action to recover possession thereof.
The causes of action as consolidated were tried to a jury and a verdict in favor of defendants was rendered both on the complaint and on the cross complaint. From the judgment entered thereon and from an order denying plaintiffs' motion for a new trial and denying plaintiffs' ...