JORDAN et al.
WORTHINGTON PUMP & MACHINERY CO
Jerman & Jerman, Richard R. Greenfield, of Phoenix, for appellants.
Townsend & Jenckes, of Phoenix, for appellee.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur.
[73 Ariz. 330] This is an appeal from an order granting summary judgment in favor of appellee and against appellants, from the judgment entered thereon, and from the order denying appellants' motion to set aside said judgment.
Appellants Jordan and Hodges allege in their cross-claim against appellee Worthington Pump & Machinery Company that on June 1, 1948, they purchased from appellee through its dealer and agent at Tucson certain Worthington pumping equipment and paid for the same in full; that it was installed upon their premises for the purpose of pumping water for irrigation and that prior to the 11th day of that month it was discovered by appellants that the pump was freezing up due to the fact that it was not properly sealed, thus permitting water to seep into the oil tubes filling them with water and preventing proper lubrication of the pump; that it was necessary to pull the pump which was done; that appellee was notified at various times through its agents of the penetration of water through the oil tubes and of the consequent freezing of the pump; that it was not pumping the quantity of water it was designed to pump; that after many complaints were made to appellee, and on June 30, 1949, Baker, Kastner and Bool doing business as the BKB Pump & Machinery Co., then [73 Ariz. 331] dealers of appellee and plaintiffs in this case, were called upon to repair the pump; that they pulled the pump and upon examination found it to be completely worn out inside.
The repairs were made by them for which they charged appellants $ 941.99 and upon failure of appellants to pay therefor, filed a materialmen's lien against the premises and thereafter brought action against appellants seeking foreclosure of the lien.
Appellants answered the complaint and procured permission from the court to bring appellee in as a third party defendant and asked that appellee be required to pay under its contract guarantee whatever amount was found to be due it from appellants for the repairs made. The cross-claim further asked for other relief not here necessary to relate.
Appellee answered the cross-claim of appellants and denied all of the allegations of the complaint including a denial "that on June 1, 1948, or at any other time it sold any Worthington pumping equipment to cross-complainants, defendants and/or third party plaintiffs either directly or through the agency of plaintiffs herein, or any one else."
A motion for summary judgment was thereafter filed by appellee supported by affidavits of officials of the Worthington Pump & Machinery Company. These affidavits expressly included as a part thereof the Tucson dealer's contracts both with plaintiff doing business as BKB Pump & Machinery Co., and Fuller-Thomas Distributing Company, Inc., and the purchasing order for the pump here involved. The Fuller-Thomas Distributing Company, Inc., was the dealer of appellee in Tucson from July 23, 1947, to May 23, 1949. The purchase order discloses the pump was purchased from Fuller-Thomas Distributing Company, Inc., March 20, 1948. Insofar as these affidavits related to the terms of the contract between appellees and the Tucson dealers, they were not controverted; nor was the fact that the pump was purchased at the time Fuller-Thomas Distributing Company, Inc., was appellee's dealer at Tucson.
Appellants have filed affidavits of officials of Fuller-Thomas Distributing Company, Inc., to the effect that their company was the duly appointed agent of appellee and sold the pump and equipment in question to appellants which ...