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Gomez v. Dykes

Supreme Court of Arizona

February 23, 1961

Vidal GOMEZ and Jessie Gomez, husband and wife, Appellants,
v.
D. A. DYKES and Florence E. Dykes, husband and wife, Appellees.

Rehearing Denied May 5, 1961.

Page 761

[89 Ariz. 172] Clark & Coker, Phoenix, for appellants.

Moore & Romley, Phoenix, for appellees.

JENNINGS, Justice.

This appeal involves the incidents arising out of contracts for the sale of real and personal property wherein appellants Vidal Gomez and Jessie Gomez, husband and wife (hereinafter called plaintiffs), are the buyers, and appellees D. A. Dykes [89 Ariz. 173] and Florence E. Dykes, husband and wife (hereinafter called defendants), are the sellers.

Prior to October 7 through 10, 1952, the parties hereto negotiated for the sale and purchase of a ranch located in south Phoenix, Arizona, composed of real and personal property owned by defendants. On or about October 10 the parties concluded their negotiations by signing and executing a contract and an agreement of sale which specifically described certain real and personal property to be transferred to plaintiffs for an agreed consideration.

Pertinent, but not in contention was an agreement that defendants could feed and keep their cattle in various cattle pens on the premises until February 1, 1953. Thereafter dispute arose between the parties and after negotiation, it was stipulated that defendants might remain in possession of the cattle feeding pens from February 1, 1953 to and including May 31, 1953, as tenants from month to month on payment of an agreed rental. During the same period following February 1, 1953, further dispute arose whereby plaintiffs claimed they were entitled under the agreement of sale to a clodbuster which they claimed had been removed from the premises. Plaintiffs also contended that they were entitled to a trailer house which had been on the premises.

A third dispute concerned manure in the cattle feeding pens. On or about May 31, 1953, defendants removed some 1,645 tons of manure from pens 1 through 8. Thereafter defendants sought to remove the

Page 762

munure from the remaining pens 9 through 11 but were prevented by plaintiffs from so doing. The facts also disclose that plaintiffs did thereafter remove some 660 tons of manure from pens 9 through 11.

On these matters of dispute the trial court ruled for the defendants and based its decision on ten specific findings of fact from which it laid down six conclusions of law.

From this decision plaintiffs bring six voluminous assignments of error. The first two, in substance, allege that the evidence does not support the judgment concerning the clodbuster; that the defendants did by their silence at the time of the preliminary negotiations and subsequent written agreements, fail to reserve the same as not being part of the ranch properties to be sold, and that the court erred in finding and holding that defendants did not sell nor agree to sell the trailer house to the plaintiffs.

Where findings of fact and the judgment of the trial court are supported be evidence they will not be disturbed and will be sustained on appeal. Speedway Enterprises v. Hartsell, 75 Ariz. 36, 251 [89 Ariz. 174] P.2d 641; Allen v. Whiting, 58 Ariz. 273, 119 P.2d 240; In re Taylor's Estate, 56 Ariz. 211, 106 P.2d 492; Equitable Life Assur. Soc. of United States v. Boyd, 51 Ariz. 308, 76 P.2d 752; Tway v. Southern Methodist Hospital and Sanitorium of Tucson, 48 Ariz. 490, 62 P.2d 1318.

Plaintiffs claim they intended to purchase a certain clodbuster and that such item was not delivered to them. In support of this position plaintiffs offered evidence of conversations between defendant Dykes and plaintiff Vidal Gomez, Sr. and Vidal Gomez, Jr., which were all prior to or concurrent with the signing of the written agreement of the parties specifying those items of personal property that were sold. The substance of these conversations was that defendant Dykes offered the entire place for sale with everything on it except cattle and personal belongings. According to plaintiffs this was to include a clodbuster like the one shown in plaintiffs' Exhibit A-1 in evidence which plaintiffs claim was on the premises. Defendants made a continuing objection that such conversations were inadmissible as being in violation of the parol evidence rule. However, the parol evidence rule is not in issue. The evidence indicates that the defendants did return a clodbuster to the plaintiffs. The question does arise whether this clodbuster was the same as that which plaintiffs claim they intended to purchase.

Since the sales agreement lists certain items of farm machinery to be sold and then in the next breath, relating to this transaction, makes an all-inclusive reference to 'any other tools or supplies that are on the ranch at the present time,' we agree with the trial court that for the lack of specific agreement on the matter, there can be no breach of it.

As relates to the trailer house the question arises, was the trailer house a fixture and therefore realty to pass under the realty agreement or, was it not a fixture so that it retained its character of personalty? The rule is set forth in Fish v. Valley Nat. Bank of Phoenix, 64 Ariz. 164, 170, 167 P.2d 107, 111:

'The mere affixing of personal property to real estate may or may not cause it to lose its personal characteristics. It may retain its identity as a chattel personal and not become a chattel real. The rule is that for a chattel to become a fixture and be considered as real estate, three requisites must unite: There must be an annexation to the realty or something appurtenant thereto; the chattel must have adaptability or application as affixed to the use for which the real estate is appropriated; and there must be an intention of the party to make the chattel a permanent accession to ...


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