W. H. Quesnel (now deceased), and Laurence Davis of Tucson, for appellant.
Darnell, Robertson & Holesapple and Clarence V. Perrin, all of Tucson, for appellee.
Murry, Superior Court Judge. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.Note: Justice EVO DE CONCINI, being disqualified, the Honorable PORTER MURRY, Judge of the Superior Court of Greenlee County, was called to sit in his stead.
Murry, Superior Court
[72 Ariz. 346] This is an action by one partner, Joe DeSantis, plaintiff below and appellant herein, against the other partner, Bruce B. Dixon, defendant and appellee, for an accounting and dissolution of partnership, for temporary injunction, for appointment of receiver and for damages, to which the defendant answered and counterclaimed. For convenience we will refer to the parties as they were designated in the trial court.
The case was tried to the court without a jury. During the trial all factual questions were settled by stipulation of the parties (which stipulation was approved by the court), except the question of title to certain [72 Ariz. 347] real property and whether any rental liability was owed by the partnership to the defendant for the use of the said property. Plaintiff claimed the real estate was partnership property, while the defendant asserted that it was his separate property.
Judgment was rendered against the plaintiff on the complaint and for the defendant on the counterclaim, quieting title in the defendant to the following described property: Lots Nine (9) and Twelve (12) in Block 256 of the City of Tucson, Pima County, Arizona. Also known as 137 S. 6th Avenue, Tucson, Arizona. Defendant was also awarded rent on said premises in the sum of eleven hundred dollars and costs. This appeal followed.
The material facts briefly summarized are as follows: In 1942 an indefinite oral agreement of partnership was entered into between the plaintiff and defendant for the buying and selling of used cars, under the firm name of Dixon-DeSantis Motor Co.
In the early summer of 1943 the location where the partners were doing business was sold and they were informed that they would not be able to renew their lease in the fall. The necessity of moving was the prime factor leading to the acquisition of the property in dispute. There is a sharp conflict in the testimony concerning the negotiations for the purchase of the property in question, which will be discussed in detail later. The evidence as to the conduct of the parties and their method of bookkeeping as to the property after it was conveyed to the defendant is also conflicting. But the undisputed facts are that the two lots were purchased with the defendant's funds for $ 24,500, $ 12,500 being paid in cash and a mortgage executed by the defendant for the balance. Title was taken in the name of the defendant only. In due course the business was moved to these lots and an option was granted by the defendant to the plaintiff, giving plaintiff the right to buy the entire property upon the death of the defendant, on the condition the defendant had not already sold it.
Plaintiff makes the following four ...