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Levandoski v. Pacheco

Supreme Court of Arizona

April 9, 1958

John E. LEVANDOSKI, Appellant.
v.
Marcos E. PACHECO, Appellee.

Hash & Bernstein, Phoenix, for appellant.

Cordova & Thompson, Phoenix, for appellee.

STRUCKMEYER, Justice.

This action was commenced to recover the sum of $2,240 paid by Marcos E. Pacheco to John E. Levandoski for a onehalf interest in the license, equipment and inventory in a certain tavern. From a judgment in favor of appellee the appeal followed.

In March 1953 appellant owned a one-half interest in John and Paul's Tavern located near Phoenix, Arizona. On March 23, after[84 Ariz. 56] some preliminary negotiations, appellee agreed to buy the appellant's interest. $2,000 was paid at that time and two or three days later, after an inventory had been taken, the further sum of $240 was paid. As a condition of sale it was agreed that if the transfer of Levandoski's onehalf interest in the liquor license was not approved by the State Superintendent of Liquor Licenses and Control, the sale would be void. Subsequently, the Superintendent disapproved the transfer. Appellant refused to return the $2,240, defending his refusal on the ground that appellee was not entitled to recover the purchase price until he had returned or offered to return the equipment and inventory received. The property has not and cannot be returned as seemingly some of the equipment was stolen and part destroyed by vandals.

Appellant urges that when the property 'is transferred to the buyer the goods are at the buyer's risk whether delivery has been made or not.' Uniform Sales Act, now section 44-222, A.R.S.1956. It is appellee's argument that the property was not transferred to him, the buyer, that this issue was determined against appellant by the trial court, and that while there was evidence to the contrary, the court's finding is amply supported.

Appellee testified:

'Q. Now, Mr. Pacheco, you say that you didn't take possession of the John & Paul's Tavern? A. Never.'

Page 952

Lupe Obregon, who worked at the tavern for a period of thirteen months including all of the time during which appellant contends possession was in appellee, corroborated this.

'Q. Was Marcos Pacheco ever your employer? A. No.

* * *

* * *

'Q. Did Marcos ever receive, to your knowledge, any money from the business? A. No.

'Q. Did Marcos ever pay you? A. No.

'Q. Who were you taking orders from at that time? A. Paul. [The owner of the ...


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