BUILDERS SUPPLY CORPORATION, an Arizona corporation, Appellant,
Elwood N. MARSHALL, Appellee.
[88 Ariz. 91] Fennemore, Craig, Allen & McClennen, by B. J. Rumsey, Phoenix, for appellant.
W. H. Chester, Phoenix, for appellee.
This is an appeal by Builders Supply Corporation, defendant-appellant, from a money judgment entered against it in favor of Elwood N. Marshall, plaintiff-appellee. The parties will herein be referred to as [88 Ariz. 92] they appeared in the lower court, i. e., plaintiff and defendant.
Plaintiff instituted this action to recover a balance of $2,892.99 claimed due for hauling services rendered under a written contract dated October 5, 1948. The case was tried to the court sitting without a jury. Judgment was entered as prayed for with interest and costs. One of the points raised on defendant's motion for new trial was that the damages awarded were excessive; the court recognized the justness of this claim, and in its order disposing of said motion it directed that a remittitur in the sum of $532.80 be filed by plaintiff or a new trial would be granted, and stated that if a remittitur was filed the motion would stand denied. A remittitur was promptly filed. This appeal followed.
This case is in most respects similar to Builders Supply Corporation v. Shipley, reported in 86 Ariz. 153, 341 P.2d 940, and reference is made thereto as showing the 'modus operandi' of the contracting parties. Moreover, it will not be necessary to repeat the pertinent pronouncements of legal principles contained therein. However certain defenses, not pleaded--hence undecided--in the Shipley case, were expressly set forth in the instant case.
Plaintiff Marshall was a licensed contract carrier and had a copy of his contract with defendant, dated October 5, 1948, approved and on file with the Corporation Commission. Thereafter, in November 1948, defendant Builders Supply adopted and began to use a different basis of payment to plaintiff (and other truckers) who were hauling its products. It should be noted that the Corporation Commission was not advised of any modification of the Marshall contract or change in the rate of payment, nor did they approve of same. The subsequent amounts paid to plaintiff were less than the sums called for in the contract. This discrepancy gave rise to the instant suit. This practice continued until the parties terminated their relationship in Ocrober 1950.
It is apparent from the record that the trial court considered there were two valid grounds upon which to base a judgment for plaintiff, viz.:
1. That as a matter of fact the parties had never agreed upon a modification of said contract.
2. That the parties did not have the power or right to modify the contract of October 5, 1948, without first filing with the Corporation Commission a copy of said subsequent contract, which concededly was not done. It is to be noted that the Commission's General Order No. MV-4 specifically makes such a requirement.
While the trial court perhaps leaned most heavily upon the second ground, we do not believe it is necessary for us to determine the correctness of this legal conclusion where the appeal can be determined upon the other basis. Certainly if in truth and [88 Ariz. 93] in fact there was no modification agreed upon, there could be no amended contract to file with the Commission, and the original contract would be controlling.
This leads us to the query: was there a modification of the contract?
The trial court, inter alia, found:
'6. The plaintiff never, orally or in writing, consented to a modification of the contract of October 5, 1948.'
By an appropriate assignment of error the defendant asserts such finding is not supported by any competent evidence. To the contrary it maintains the evidence clearly establishes that the original contract 'was modified, or terminated or replaced by a new agreement between the parties.' After a careful perusal of the evidence we are ...