SINGLETON et ux.
DUNN et al
Corbin & Orme, of Phoenix, for appellants.
Harold R. Scoville and Charles A. Stanecker, of Phoenix, for appellees.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[71 Ariz. 153] The defendant Everett Singleton and his brother, Chuck Singleton, owned a second-hand well-drilling rig and had a well-drilling business which they operated in Maricopa County. The well-rig, a homemade affair, was designed and built for the purpose of drilling wells for domestic purposes and especially six and eight inch wells. On Sunday, March 23, 1947, Everett Singleton, the defendant, was drilling a well with the rig about one-quarter mile south of the Phoenix-Wickenburg highway in the community of Surprise. The well was being drilled for and under contract with a Mrs. Statler. Lige Dunn and Charles E. Mason, the plaintiffs herein, who were planning to enter the well-drilling business, were driving around this area in the company of an experienced well driller, Herman Parker, whom they planned to employ in their business, trying to locate a well-drilling rig they could purchase. They saw this rig in operation and stopped to see if they could purchase it. After some preliminary observations by Dunn and discussion with Everett Singleton concerning the possible purchase of the rig, it was agreed by the two that Everett would consult his brother, Chuck, that evening since Chuck owned a half interest in the business, then notify Dunn of their decision. At this time both parties apparently disclaimed any special knowledge or experience concerning the well-drilling business, and Parker, the experienced driller, sat in the car and made no examination or inspection of the rig and outfit. That evening Everett notified Dunn they, the Singletons, had decided to sell if he would pay cash. Dunn agreed to pay cash, take over the drilling machine, the tools, equipment and the business. A date was made to meet the next day at Singleton's office in Glendale, Arizona.
On Monday, the 24th, as arranged by phone the night before, plaintiff Dunn met the Singletons in Glendale, then went with Everett Singleton to the drill location and
to a place about five miles distant where the tools and equipment which were to be included in the transaction were stored. These tools were found stacked on the ground covered with dirt. Plaintiffs alleged no examination of these tools was possible and further that the tools attached to the rig were suspended in the hole then being drilled and could not be examined because the rig was not in operation.
The parties returned to the defendant's place of business in Glendale and after further discussion of the rig, equipment and terms of sale, plaintiff Dunn paid defendants the sum of $ 2000 on the agreed price of $ 6500. The balance was to be paid $ 3500 in cash two days later, the remainder of $ 1000 to be paid in services, Dunn to drill a 12-inch well for the Singletons for that [71 Ariz. 154] amount. A receipt for the down payment of $ 2000 was given and also a purported bill of sale which describes as part of the equipment, 1 stem and 2 bits 8", 1 stem and 2 bits 6", 1 set jars 6". Plaintiffs allege this part of the equipment was never delivered. After payment of the $ 2000 plaintiffs went into possession of the personal property and commenced working on the well for Mrs. Statler under defendants' contract with her.
A few days later when the defendants had procured a certificate of title from the motor vehicle division of the highway department, which certificate was necessary to the transfer of the rig, demand was made for the remainder of the cash due. Plaintiff in his turn made demand for delivery of the alleged missing tools and equipment. There is conflict in the evidence as to what transpired before defendants repossessed the rig and equipment, whether the defendants then summarily ordered plaintiffs from the property or whether plaintiff Dunn then closed down the rig, suspended all drilling operations and refused to complete the transaction. Plaintiffs now seek recovery of the $ 2000 down payment and damages for loss of profit. Defendants cross complained asking to retain the sum of $ 2000 as earnest money paid and for damages to the business and equipment sold to plaintiffs.
The substance of the controversy seems to be that the bill of sale specified, among other things, 1 stem and 2 bits 8", 1 stem and 2 bits 6" and 1 set jars 6" and plaintiffs claim this portion of the equipment was never delivered; that the rig, though satisfactory, was useless for their purpose unless the specified tools were furnished also; that the equipment furnished -- one 4" bit, a set of 4" jars, a 4" stem, a built-up 6" bit, useless as an 8" bit and which could only be repaired and used as a 6" bit, -- did not comply with the bill of sale; that no 6" or 8" drill stem was delivered but only a sinker bar being used as such; that there was no set of 6" jars furnished except a useless one which ...