D. O. SHARTZER, Appellant,
J. B. ULMER, Appellee.
[85 Ariz. 180] Mahoney & Vincent, Florence, for appellant.
Richard R. Greenfield, Phoenix, for appellee.
This is an appeal from a judgment in favor of J. B. Ulmer, plaintiff (appellee), in the sum of $5,075 for damages against defendants D. O. Shartzer (appellant) and one Tom H. Spargo. For the sake of clarity the only two parties to this appeal will be designated either by name or as appellant and appellee, while the other defendant Spargo, who has not appealed, will be called by his surname.
The case was tried to the court, sitting without a jury, and while no formal findings of fact or conclusions of law were requested or made, the records of the trial court do disclose the basis for its ruling. The basic facts are not in serious dispute, but under our invariable rule--wherever there is a conflict--we shall state the facts in a light most favorable to a sustaining of the judgment. A divergence of opinion, however, does exist between the parties as to the application of legal principles to such facts.
Briefly it appears that at all times pertinent hereto appellant Shartzer was the owner of a ranch comprising some 40 to 50 sections of grazing land and about 200 cultivated acres. This is known locally as the 'Crescent Ranch' and it lies somewhat between the towns of Kelvin and Winkelman in Pinal County. On or about October 21, 1951, appellant leased the grazing land to Spargo who, according to his testimony, was to stock the range and pay as rental 'half the gain on the cattle I put on there.' The appellant's version was that the only cattle to be placed on the ranch were those belonging to Spargo. He testified:
'* * * I wanted to lease it to someone that could stock the range, and he (Spargo) said, Well, he could get some more cattle and I asked him if he was financially able to stock the range and he said he could, so we made a deal that we put the cattle in on a gain basis.'
Early in the year 1952 the terms of rental were changed to a flat rate of $10,000 per annum rental with no specified length of time for it to run. These transactions were all oral. Spargo took possession of the grazing range under the terms of his agreement with appellant Shartzer, and at all times here involved was in full and [85 Ariz. 181] complete control thereof without appellant in any way attempting to dictate the operation of the ranch. Spargo testified that the amended cash rental agreement was entered into before his deal (as next related) was made with appellee Ulmer.
Ulmer, a farmer and cattle feeder of Blythe, California, early in March 1952 was looking for pasture for some of his cattle. A local man directed him to Spargo whom he first met at Kelvin. The latter took him over the Crescent Ranch range so that he might see the feed situation, and this proving satisfactory they reached an agreement, viz.:
'2.50 per head per month, and he was to take care of the cattle. I delivered them to him. He was to take care of them, salt them; and when I was ready for them he was to deliver them back to me in a corral with a loading chute and guarantee the cattle count or show me the carcasses of the dead ones. Anything that died from natural causes I was to stand if he could show me the carcass. Other than that he was to guarantee the count.'
Later, between March 12-15, appellee delivered to Spargo at the Crescent Ranch 278 head of crossbred Brahma steers branded U Bar. Ulmer admits he made no inquiry as to who owned the ranch and that he did not know appellant Shartzer; that Spargo being in possession he 'had the idea he owned it.' Appellee Ulmer admittedly paid monthly to Spargo the agreed pasturage fee, which in the aggregate amounted to $7,995.55.
On October 1, 1952, appellee contracted for the sale of these Brahma steers, delivery to be made in May 1953. About April 18, 1953, appellee notified Spargo that he wanted delivery of his cattle. April 20th, 46 head were rounded up and shipped without incident. Three days later another herd, bearing various brands, and been rounded up and penned; trucks were there to haul the U Bar steers away when appellant Shartzer appeared upon the scene, parked his jeep in front of the loading chute, and
'refused to give me (Ulmer) the privilege of shipping. He told me I couldn't haul them. He told the inspector not to inspect them out and the truck driver not to haul them out.'
The reason given was that appellant had not been paid the pasture bill due him. It further appears that Spargo had kept all of the moneys paid to him by Ulmer and others and had not paid anything at all to appellant on their rental deal. After this show of belligerence on the part of Shartzer, a Mr. McLeod, representative of the Valley National Bank, opened the gates and turned the penned cattle loose as it was late and there was no feed or water for them at the corral.
[85 Ariz. 182] It should be noted that during this same period cattle belonging to other parties had been similarly pastured by Spargo and the latter also had some 200 head of his own cattle on the range ...