L. H. KAHL, Appellant,
E. B. WINFREY and Jane Doe Winfrey, husband and wife, Appellees.
[81 Ariz. 200] Cusick, Watkins & Frey, Tucson, for appellant.
Moore & Moore, Phoenix, for appellees.
Plaintiff (appellant) L. H. Kahl brought an action in replevin against defendants (appellees) E. B. Winfrey and wife which resulted in a money judgment being entered in favor of defendants and against plaintiff.
After denial of the latter's motion for a new trial this appeal was taken from the judgment. The designation by which the parties appeared in the trial court will be used.
The chain of events giving rise to this suit is as follows: plaintiff sold to defendant E. B. Winfrey under a single conditional sales contract-on the usual printed form used by plaintiff-two items of farm equipment, viz., a harvester for $1,215 and a tractor for $2,216. The total contract price, including sales tax, fees, etc., was $3,520.13, of which amount the sum of $2,520.13 was paid at the time of execution or shortly thereafter, leaving a balance due of $1,000-[81 Ariz. 201] plus provision for additional costs and fees in cases of default. By the terms of the contract title was retained by plaintiff until the two installments provided for therein were paid. Being in default and after demand and notice had been given to him, defendant failed and refused to pay any of the balance then past due on the contract, or to surrender possession of such equipment. Whereupon plaintiff, on March 31, 1953, brought this replevin action asking for the return of said property or, in the event possession thereof cannot be had, a judgment for the balance due on the contract plus interest and costs incurred.
A writ of replevin was issued the day suit was filed. On or about April 15, 1953, defendant voluntarily returned the harvester, placing it in plaintiff's yard at Tucson. It was not until May 18, 1953, that the sheriff seized the tractor and gave possession thereof to plaintiff.
Defendant by his answer admits execution of the conditional sales contract, and denies there is anything due thereon, though there is no allegation of further cash payments having been made. It is affirmatively alleged that plaintiff wrongfully obtained possession of the tractor and that defendant voluntarily returned the harvester to plaintiff. In defendant's brief this statement appears: 'The seller's right to possession of the harvester have never at any point in this case been disputed by the buyer.' Through the medium of four counterclaims, filed with the answer, certain affirmative relief is asked. count one thereof is predicated upon the theory that the conditional sales contract was severable. It alleged the harvester was unfit for the purpose for which purchased and that it was returned pursuant to a new oral contract between the parties whereby defendant was to be credited with the sum of $1,000, being the balance of the purchase price owed. Therefore, it is asserted replevin of the tractor was wrongful. The prayer is for the return of the tractor, or in the alternative, a judgment for its claimed value of $2,100 plus the sum of $150 in damages for each month the tractor has been retained by plaintiff. Count two: if the first counterclaim is denied because the court finds the contract to be non-severable, then defendant seeks to rescind the entire contract and recover the initial payment of $2,520.13. Count three theorizes that because the harvester was not sold within thirty days after 'retaking', the plaintiff is obliged by pay statutory damages under section 52-617, A.C.A.1939 (A.R.S. § 44-325), i. e., one-fourth of the amount paid on the harvester-which defendant computes to be the sum of $224.91. Count four seeks the return of the tractor, or, in the alternative, its value, which is alleged to be $2,100, and in addition the sum of $150 for [81 Ariz. 202] each month he has been deprived of the use thereof. This is upon the theory that defendant was discharged from the contract by reason of the fact that the tractor was not sold within thirty days of retaking and, therefore, the replevin was wrongful and without right. Plaintiff's reply to all of the counterclaims was, in effect, a general denial.
With the issues thus framed, the case went to trial on August 19, 1954, before the court sitting without a jury. Defendant requested written findings and the pertinent findings of fact made by the court are the following:
'6. Plaintiff has not given notice of sale, and has not sold either piece
of equipment and still retains them in his possession.
'7. Since taking possession of the tractor plaintiff has altered it by welding on it a new hitch, and has rented it to third persons, receiving Three Hundred Dollars ($300.00) as rent therefor.
'8. When voluntarily returned to plaintiff the harvester was reasonably worth One ...