A. L. Maltby, of Phoenix, for appellant.
Stahl, Murphy & Bishop, of Phoenix, for appellees.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[74 Ariz. 63] This is an appeal by H. C. Peters, defendant-appellant, from a judgment rendered against him in a suit brought by plaintiffs James and Mike Macchiaroli, d. b. a. James Macchiaroli Fruit Company (appellees herein), and from the order denying his motion for a new trial. The case was tried to a jury and its findings formed the basis for the money judgment that was entered. The parties will hereafter be referred to as plaintiff and defendant.
The defendant was the owner of an 80-acre citrus grove and on November 16, 1948, he entered into a written agreement with the plaintiffs -- who were growers and shippers of citrus fruit -- for the sale of his entire crop of grapefruit, navel, sweet, and valencia oranges at specified prices for each class on a "packed out box" basis. Obviously the poorly drawn contract was the work of laymen -- the evidence shows that each party took a hand in its draftmanship -- but considered in the light of the evidence adduced and the well-established practices and usages governing such sales it is not difficult to interpret.
[74 Ariz. 64] According to recitations in the contract the plaintiffs gave the defendant a deposit of $ 2,000 "to be applied to the purchase of the citrus fruit on above property" and it was further agreed that "If fruit taken by Buyer * * * does not equal deposit * * * difference in amount shall be refunded to Buyer by Seller, H. C. Peters." This latter clause forms the basis for the instant suit as the plaintiffs alleged and proved to the satisfaction of both the court and jury that prior to a killing frost they had only been able to pick some 2306 "field boxes" of merchantable fruit, which netted 1536 "packed out boxes". Judgment was entered for $ 1317.54 which was the difference between the sum owed for the fruit picked and the amount advanced to defendant.
The defendant, in addition to his answer denying that he was indebted to the plaintiffs in any sum whatsoever, filed a counter-claim seeking damages in the sum of $ 4807.46 for the claimed breach of the contract in which it was alleged that plaintiffs had failed to pick and pack the entire citrus crop. However there being no evidence to support the counter-claim the court instructed a verdict for the plaintiffs.
The defendant has attempted to set forth six assignments of error but only the first and last are deserving of consideration. From time immemorial this court has held that assignments such as these which appear in the opening brief, e. g. "The court erred in refusing appellant's requested instruction # 1" are so patently defective as to not require treatment. Our latest expression on the subject -- wherein the previous cases are collected -- is Meloy v. Saint Paul Mercury Indemnity Co., 72 Ariz. 406, 236 P.2d 732, 733, from which we quote:
"After the repeated and pointed reminders we have given to the bar in this matter, it would seem that by now it should be known by all its members that a compliance with the rules is mandatory."
The defendant's main theory of the case is that the title to the entire crop of citrus fruit passed to the plaintiffs on the date of signing the contract, and therefore the loss occasioned by the killing frost of January 3, and 4, 1949 fell upon the plaintiffs. On the other hand plaintiffs contend that this was an executory contract of sale as distinguished from an ...