210 P. 1046 | Ariz. | 1922
On November 1, 1918, Claude Murray and Enos Pitkins let Benjamin B. Crosby and Waity A. Crosby, his wife, have $3,271.61, and took their note for same without interest, payable at the Round Valley Bank of Springerville, Arizona, on or before May 1st (1919). At the same time they conveyed, by bill of sale absolute on its face, to Murray and Pitkins, certain leaseholds held by them, or trustees for them, from the state of state lands, and the improvements thereon. In an escrow agreement, of even date, Crosby and wife agreed to deposit, with the Round Valley Bank, all the leases of the land de
Later, in a suit, between the parties in the superior court of Apache county, the bill of sale and escrow agreement were construed as, and decreed to be, a chattel mortgage, and not an absolute sale. ' In January, 1920, the present suit was commenced by Murray
The complaint alleges that the bill of sale had been determined to be a mortgage, covering and constituting a lien upon the described leases and improvements; that plaintiffs had erroneously caused said leases to be transferred and assigned on the records of the State Land Department and had, through mistake and error, returned the promissory note to the defendants in whose possession it was at the time of bringing the suit; offers to reassign all leases to defendants and restore them to their original position and rights under the leases and leasehold interest, subject to their mortgage lien. It is further alleged that the plaintiffs paid to the Arizona State Land Office the sum of $269.60, being the accumulated annual rent due on said leases. In addition to these allegations, the complaint sets forth that the plaintiffs used all of said property and leasehold interests and rights, up to about the 10th of August, 1919, when the defendants, in violation of their agreement, and without the knowledge or consent and against the will or wish of the plaintiffs, entered into and took possession of the property.
The plaintiffs in their prayer asked, among other things:
“That upon the filing of this complaint an immediate order be entered directing defendants to quit and surrender possession of all leasehold interests in the premises to plaintiffs, pending final hearing and judgment in this action.”
The defendants’ answer admits the execution of all of the described instruments, and that they had been decreed to be a mortgage lien against said property; denies the possession or right of possession of the premises in the plaintiffs.
At the trial it was stipulated that the defendants were indebted to the plaintiffs in the sum of $3,271.61, with interest thereon at the rate of six per cent per annum from the first day of May, 1919, and in the sum of $269.60 on account of moneys paid by plaintiffs to the Arizona state land office as annual rental on the property in controversy, with interest thereon at the rate of six per cent per annum from the twenty-fifth day of July, 1919, and that the plaintiffs were entitled to an attorney’s fee of ten per cent on the amount found due.
The court found from the contracts in evidence that the plaintiffs were entitled to the free use of all the watering places and ranges belonging to the defendants or the leases mentioned in said contract, and that they are now so entitled to the possession
The defendants having stipulated that plaintiff should have judgment for the annual rental paid by them on account of leases, we conclude that at the time of trial leases had been readjusted or reassigned by plaintiffs to defendants, otherwise the defendants would not have agreed to repay to plaintiffs such rentals together with the interest thereon from the date such rentals were paid to the Land Commission. The judgment, therefore, in favor of plaintiffs for the debt of $3,271.61 and interest from May 1, 1919, the rents, and ten per cent attorney’s fee, is not assailed by defendants, but, on the contrary, is admitted to be for amounts justly due and owing.
That part of the judgment decreeing plaintiffs entitled to the joint use of the waters and ranges on leased premises with defendants is assigned as error.
The judgment allows plaintiffs interest from May 1, 1919, on the loan made to defendants; whereas, under the agreement no interest was to be charged while plaintiffs were using the water and range and improvements on leased lands. The plaintiffs are not entitled to both the interest on loan and the use
The striking of defendants’ counterclaim upon motion of plaintiffs is also assigned as error. Although the reasons upon which the court granted the motion do not appear in the ruling, we gather from the briefs and arguments of counsel that the court thought the cause of action set out in cross-complaint did not fall within the terms of paragraph 480, Civil Code of 1913, authorizing a counterclaim by a defendant when it is connected with or arises out of the contract sued on, or out of the transaction pleaded in the complaint, as the foundation of plaintiff’s claim. We do not think it necessary to determine that question. It does not appear to us that the facts stated constitute a cause of action against the plaintiffs. If that be true, by treating the motion to strike as in the nature of a demurrer (Finney v. Raudabaugh, 182 Mo. App. 246, 168 S. W. 314) the order to strike was properly made. The wrong charged against plaintiffs is that plaintiffs, without foreclosing their mortgage lien thereon, caused defendants’ leases of state lands, which had been assigned to plaintiffs as security, to be surrendered and other leases therefor to be executed to themselves; that said state land leases were their only source to obtain money to pay plaintiffs, and that by reason of plaintiffs’ wrongful act they were deprived of that source to their damage in the sum of $2,000; and further that such act deprived defendants of using such leases as security and surety for the leasing or purchasing of livestock on various occasions
By ratifying the act of plaintiffs and accepting a reassignment to them of leases and paying the rental advanced thereon by plaintiffs, defendants waived the right to sue for value of the property charged to have been converted. Having accepted a return of the property, they can only claim damages for any injury they may have sustained during the time they were deprived of its use. It is not claimed that the property itself was, or could be, injured by the act committed by plaintiffs. The only claim is that plaintiffs’ act in changing leases affected defendants’ credit so that they could not borrow money to pay plaintiffs. If that be a fact, we cannot see how plaintiffs should be mulcted in damages for it. It was defendants’ misfortune that they had no other property to offer as security for a loan to pay the note and mortgage admittedly long past due on July 21, 1919. The very proposition carries with it the thought that it was their lack of resources, and not the act of plaintiffs, that prevented their borrowing money to pay note and mortgage. If defendants could recover on that ground, then the right of action could not arise when a party had other resources than the mortgaged property upon which to borrow money, for the purpose of paying his debt. The law does not recognize such distinction between the rights of defaulting debtors. The duty of one to meet his obligations is as sacred and binding as that of the other and is not dependent upon financial standing.
The other claim of defendants, to the effect that they were unable to lease or purchase livestock to their damage in the sum of $2,000, because of the acts of plaintiffs, besides being subject to the above criticism, is too speculative to -be the foundation of a cause of action. Suppose they could have leased
“Compensation is the standard for the measure of damages. . . . "With the exception of those rare cases in which . . . damages may be recovered, of which the one at bar is not one, a defendant is never liable to pay more than the actual loss which he has inflicted upon the plaintiff by his wrong. Nor is the plaintiff permitted to exaggerate, increase, or speculate on his loss so as to inflict a penalty upon the defendant.” Hoyt v. Fuller, 104 Fed. 192, 43 C. C. A. 466.
With the modification suggested, the judgment of the lower court is affirmed.