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Builders Supply Corp. v. Shipley

Supreme Court of Arizona

July 9, 1959

BUILDERS SUPPLY CORPORATION, an Arizona corporation, Appellant,
v.
Harold SHIPLEY, Appellee.

Rehearing Denied Sept. 22, 1959.

Page 941

[86 Ariz. 155] Rawlins, Davis, Christy, Kleinman & Burrus, B. J. Rumsey, and Chester J. Peterson, Phoenix, for appellant.

W. H. Chester, Phoenix, for appellee.

JOHNSON, Justice.

Plaintiff-appellee instituted this action to recover a balance due for services rendered under a wirtten contract dated June 22, 1948.

Plaintiff, Harold Shipley, was granted a permit as a licensed contract carrier by the Arizona Corporation Commission upon filing with it the contract in question. Defendant-appellant, Builders Supply Corporation, manufactured brick and concrete block, which were distributed to its customers through the services of independent truckers, such as the plaintiff.

The suit was based on that portion of the contract which concerned payment for hauls made outside of the designated 'zone rate area'. It provided:

'Where the hauling will be done outside the above designated zone the rates will apply as follows, five cents (5cents) per ton mile on flat country and six cents (6cents) per on mile in hilly or mountainous country.'

The contract did not guarantee that any certain amount of bricks or block would be hauled by plaintiff's truck, nor did it specify how long it was to remain in effect.

Plaintiff was paid the rates provided in the contract for hauls made to various places throughout the state for several months after it took effect. Then, in March, 1949, defendant began paying plaintiff less than the amounts due according to the contract. This continued until the parties terminated their relationship in 1954.

The law applicable to agreements of this type is that where a contract for personal services contains no time limit it may be terminated by either party, thus leaving the parties free to enter into a new contract with different terms for the same services. Dover Copper Mining Co. v. Doenges, 40 Ariz. 349, 12 P.2d 288. Termination is, of course, a question of fact.

[86 Ariz. 156] Defendant contends that the verdict in favor of the plaintiff, of $10,304.20, was not supported by the evidence. This

Page 942

court will not disturb a verdict where there is any substantial evidence to support it, nor will it substitute its judgment for that of the jury as to the weight of the evidence or the credibility of witnesses. Garlington v. McLaughlin, 56 Ariz. 37, 104 P.2d 169; Haas v. Morrow, 54 Ariz. 455, 97 P.2d 204. Here there was sufficient evidence upon which to base a verdict in favor of the plaintiff.

The evidence showed that the defendant had commenced paying the individual contract haulers under flat dray rates of so much per ton to each of the different out-of-town locations. The plaintiff turned in material cards after each run, containing the invoice number, contents of the load and destination. His wife, who kept his records, also put on the material cards the amount which would be paid according to the dray rates, when she knew what it would be.

Plaintiff maintained that he had never received any notice of the termination of the contract; that the reason given by defendant for his 'short' checks was that it was 'all we can pay right now'; that the material cards were not intended to represent the full amount due him; that he had often complained to defendant that he was not being paid the full amount under his contract; and that there were in fact no true agreed dray rates, pointing out that the rates per ton paid him by defendant for different trips to the same destination, even on the same day, often varied.

Defendant maintained that it had terminated the contract and that it had then commenced paying plaintiff on the basis of new dray rates as they were agreed upon from time to time. Its theory seemed to be that the parties had agreed to a new ...


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