[78 Ariz. 383] V. L. Hash, Phoenix, for appellant.
Stockton & Karam, Phoenix, for appellee.
Olive Daly as plaintiff (appellant) instituted a suit in replevin against Earl Williams, defendant (appellee), to recover possession of two flat-bed trailers or in the alternative $1,000, the value thereof, plus damages in the sum of $500. Defendant by answer admitted he had possession of the trailers, claiming to have acquired ownership thereof. He alleged execution of a contract of lease with an option to buy the subject trailers, entered into with Lloyd J. Green and P. W. Walters, a copartnership, d.b.a. Green & Walters at 2180 Grand Avenue in Phoenix, these latter acting as agents of plaintiff. At the conclusion of [78 Ariz. 384] the jury trial, verdict was rendered for defendant and judgment regularly entered thereon. Plaintiff's motion for a new trial was denied and this appeal followed.
There are a number of assignments of error and propositions of law which we shall later summarize and discuss in such order as seems best. The primary question involved is one of agency, i. e., the authority of Green & Walters to act for plaintiff. We shall throughout refer to the parties as they were designated in the trial court.
A brief resume of the facts, stated in a light most favorable to a sustaining of the judgment, will be given in order that the issues presented may be better understood. Plaintiff acquired title to the two trailers-the subject of this litigation-at an execution sale held on March 6, 1950. Two or three weeks thereafter, in order to avoid a mounting storage bill, she delivered prossession to Green & Walters with whom she was acquainted. The partnership was then engaged in manufacturing trailers and operating a service yard, and had originally built these particular trailers. Plaintiff's version of the conditions under which she placed the trailers with Green & Walters is that she contacted them and they were agreeable to her bringing the trailers there and leaving them without any storage charge at all. She denied giving any authority to them to lease or sell the chattels but admitted saying that 'I would sell them for $500 each.' Partner Green was permitted to give his version of the conditions under which plaintiff placed the trailers with them. (This testimony is hereinafter set out in extenso.) He further testified that acting upon the claimed oral authorization of plaintiff to lease, rent or sell, the partners sold the trailers to defendant Williams on September 2, 1950 for $300 each. At the time of delivery defendant paid $100 to them for the owner and before trial the balance of $500 was deposited with the Clerk of Court to abide the outcome of the suit, and the judgment finally entered directed this to be paid to plaintiff.
It appears that after leaving the trailers with the partners plaintiff went to California. The former, not knowing her whereabouts and being unsuccessful in attempts to contact her, could not obtain possession of the certificates of title to the trailers which plaintiff had failed to leave with them as promised, nor were they able to remit the $100 to her. Upon plaintiff's return to Arizona the forepart of March, 1951, she first learned of the purported lease and sale
to defendant Williams. She informed defendant she was the owner of the trailers and demanded possession thereof, and when he refused her demands commenced this replevin action on March 7, 1951.
The following testimony of defendant Williams as to a conversation had in his presence between plaintiff Daly, partner Walters, and himself, throws additional light on the original understanding under [78 Ariz. 385] which the trailers were taken to the lot at 2180 Grand Avenue:
'Q. Tell us what conversation you had, the three of you there, what Mrs. Daly said, what Mr. Walters said, and what you said. A. I said, 'Mrs. Daly and I are here to straighten up on these trailers.' Mr. Walters said, 'okay, fine, we will get together and straighten it up.' Mrs. Daly said, 'Why did you sell my trailers?' He said, 'We sold them just like you said to.' He said, 'I had a hundred dollars here that he paid on the trailers.' She says, 'Why haven't you given it to me?' He says, 'You haven't been here to receive it.' She said, wll, she wouldn't accept the money. I said, 'Let me make a check here, I will pay the difference and everybody will be happy.' She said, 'I won't accept it.'
'Q. What difference were you talking about? A. The $500.
'Q. Was that mentioned? A. Yes.
'Q. She refused to accept it? A. Yes.
'Q. What did she say? A. She said, 'I won't accept it, I want $500 apiece. I left here with an option to buy, ...