SIMPSON et ux.
Judgment affirmed as modified.
V. L. Hash, of Phoenix, for appellants.
Harold R. Scoville and Charles A. Stanecker, of Phoenix, for appellee.
Russell, Superior Judge. Udall, C. J., and Stanford and La Prade, JJ., concurring. De Concini, Justice (specially concurring).
Russell, Superior Judge.
[71 Ariz. 294] This was an action for conversion brought by C. E. Shaw, plaintiff, against L. D. Simpson and Bessie Simpson, his wife, defendants. Plaintiff alleged that on or about the 13th day of March, 1947, he purchased from one L. Blanton five milch cows which the defendants converted to their own use, to plaintiff's damage in the sum of $ 800. The case was tried to a jury and a verdict rendered in favor of plaintiff in the sum of $ 750.
The factual situation developed as follows: Plaintiff first purchased nine head of milch cows from one L. Blanton, for which he gave a security check, stating that he would return as soon as possible and pick up the cows. In the meantime, L. Blanton was to have the Bang's Disease test run on them. Mr. Haverty, a Deputy Arizona Livestock Inspector, before plaintiff's departure, inspected the ownership papers of L. Blanton, and also inspected the cows over to plaintiff. Plaintiff then returned home and informed his father, R. T. Shaw, of his purchase and three days later the father went to look at the cattle. There at L. Blanton's place he discovered
three other cows and purchased these in addition to the initial nine, all for the total sum of $ 1816, the $ 16 being the veterinarian's fee for his examination of the cows.
Inasmuch as five of the twelve cows purchased reacted to the Bang's Disease test or were suspects, they could not be moved from Maricopa to Cochise County; and C. E. Shaw, therefore, left them with instructions to L. Blanton to try to find a buyer and let plaintiff know so that he, the plaintiff, could dispose of them. Plaintiff contends, in this regard, that Blanton was never authorized to make a sale of the cows.
[71 Ariz. 295] Plaintiff testified at the trial, "I waited twelve days and did not hear anything from him and I came back up here. Mr. Blanton was gone, and I did not find the cows."
On or about the 9th day of April, 1947, R. T. Shaw (father of plaintiff) visited the Sam Blanton Dairy where the defendants reside. On his first visit no was home, but Mr. Shaw testified he identified plaintiff's cows by the brands and ear tag numbers. He then made a second trip to the Sam Blanton Dairy that evening about 8:30 o'clock and met the defendants, who informed him they had purchased the place and some cows that day from Sam Blanton and were in the process of their first ...