*1
“ * * * appel- If in fact some property is em-
lee’s [Mrs. Garza’s] distribution, in the
bodied decree nullity, Brown, it is a
that extent Jent through
Okl., P.2d remedy in
appropriate gen- a court proper jurisdiction relief
eral
had.” of the court below is in judgment
respects affirmed.
STRUCKMEYER, J.,C. and PHELPS BERNSTEIN, JJ., concur. J., disqualified having him-
JOHNSON, HERBERT
self, Honorable F. Superior Judge Court
KRUCKER, Arizona, County, was called to sit Pima participate stead deter-
in his appeal.
mination of this
UDALL, J., originally participated who determination appeal
in the
deceased.
Cusick, Frey, Tucson, & Watkins for appellants. D’Antonio, Tucson,
Darrow & appellee.
BERNSTEIN, Justice. Music, (hereinafter Inc. called “Maestro”) Cacioppo, F. (herein- J. Jr. after “Cacioppo”) (hereinafter called col- lectively called appeal “appellants”) *4 judgment against entered by them Superior County Court of Pima in favor Rudolph of Company Wurlitzer (hereinafter called “Wurlitzer”) in the sum $36,638.68, together with attorney’s fees and interest. Maestro, payment in received therefor a agreements, Maestro to written
Pursuant promissory by negotiable as note executed acted during years 1952 and of Maestro the sum coin-operated phonographs Greene in favor in distributor of $17,995.17. provided The note for interest accessory manufactured and merchandise unpaid by per annum on and by territory covered this at balance Wurlitzer. The 6% Arizona, lawful) if as distributorship, first, (15%, “a reasonable sum at included attorney’s fees, placed in if the hands of New Mexico Texas but sub- and West maturity.” attorney after sequently Arizona. for collection was restricted to equipment were covered phonographs and instrument, By separate Cacioppo, then by Mortgage, Money Purchase Chattel fully president Maestro, all guaranteed prior and in Texas. Thereafter recorded obligations then or and indebtednesses to December Maestro endorsed thereafter Maestro Wurlit- owing note and to the order Wurlitzer present- Cacioppo notice of zer. waived Maestro endorsement ment, obligations protest and demand provided Guaranty, covered “hereby (s) presentment waive payment, protest and notice demand non-payment protest, and con- may settle, adjust, or “Wurlitzer re- may, sents) hereof holder part, lease in or in or whole extend releasing without notice to and without security payment, time for release or * * * liability [Maestro] * for, *, any claim [Maestro] (s), unconditional endorser hereunder as part any or or release whole compound right against, or release guarantor obligor, other or endorser grant (s) extension of time any obligation guaranty, covered maker(s).” [Cacioppo] consent of without * * * paid Wurlitzer face amount of [Cacioppo] notice thereof or * * impair- a sum which was retained the note minus *, affecting, and without pending diminishing Wurlitzer in a reserve fund obligations of ing * * payment full of the note. [Cacioppo] In early while December 1952 Maestro Greene was default about On or note, Greene, doing phonographs on the George equip- business as sold to by him Company transferred, ment held were (hereinafter at Music American instigation, phono- Wurlitzer’s to A. and M. “Greene”). V. called J. Stevenson, doing business Mel equipment which were Dee and other graphs Odessa, Company (hereinafter Music to Greene in Texas. called delivered “Stev- *5 n enson”) agree City, Utah. Greene that assignee may Salt Lake our audit $1,000 paid $1,500. sum, this books and paper Of records to all relating Wurlitzer paid assigned serving may to Utah be- the distributor to and in our name it territory; delivery cause was made into his endorse note(s) all said and remit- received, Maes- was credited to tances balance of and without notice $500 to tro’s account. executed an us and affecting Stevenson without our liabil- Assumption whereby ity may he assumed Agreement any release rights and all liability balance note against, for the endorsed enter into consolidating con- testimony at with, to Wurlitzer. There was grant tracts and extensions of Cacioppo knew trial that Maestro and payment time buyer. We approved phono- and transfer of the presentment waive and demand for graphs $1,500. and allocation payment, protest or notice of non- payment protest, and and subordinate other are Three transactions involved on any rights to assignee may now or each, appeal. Maestro In sold to Ste- hereafter buyer have any phonographs venson certain Wurlitzer and rights we now hereafter have equipment by secured were condi- by payment reason to assignee of tional contracts recorded in sales Arizona. any payable installments on the con- delivered Stevenson to Maestro three tract or otherwise.” promissory notes, negotiable in the same Thereafter, above, payment Stevenson made note, form as Greene on face $66,878.29. directly the above four notes Wurlitzer, totalling amounts Maestro notes, which in October because these in the same endorsed manner of Steven- difficulties, note, son’s financial agreed it did and received the Greene extend maturity dates of the *6 may equipment by claims phonographs and demands covered and er reserved corpora- persons or notes, fund); against other cost said and the reserve the have notes, said may $5,220.05 liable repossessing phonographs, who be the tions of ' and endorsers limited to “including but not represented which Maestro’s al- ($3,000 of $5,000 payment to guarantors.” of the leged share repossess phonographs, the to Stevenson phonographs the over turned Stevenson which of were only about three-fifths Wurlitzer, agreed, to equipment, as and notes involved on this by the four covered $5,000. of the sum paid Stevenson which $2,220.05 represent- of balance appeal; the agreement testimony that There was repossession attorney’s and other fees ed by providing reasonable, and, fair was and $36,874.84 of was The total expenses). each turned over at equipment to be for the $236.16, representing sum of by the reduced to location, having Wurlitzer from saved charges, carrying leaving a net unearned expenses. repossession incur substantial which, together $36,638.68, of claim was in- that Maestro record The shows interest, attorneys was fees and award- 15% was and offered transaction formed of this judgment. in the ed repurchase the notes opportunity an to by supported Find- judgment preferred make if Maestro Wurlitzer enter- of Law ings of and Fact Conclusions arrangements with Stevenson. own its trial Superior following a ed Court approved that Maestro record does not show jury. The without held before court Wurlitzer-Stevenson to the consented or found, sum, that Wurlitzer court $5,000 payment. agreement or letter of four of each holder in due course Thereafter, repossess- Wurlitzer sold notes; that Maestro negotiable promissory or its phonographs one more of dis- ed pay- presentment, waived demand had tributors, and commenced this action thereof, protest, all notices ment and and computed appellants. its claim com- and had consented Wurlitzer’s unpaid balance of the follows: as any right against releasing pounding or note, $8,114.51 (which Greene original note; of that the notes maker each were proceeds of the credit for the sale Wurlitzer; included claimed default in sums proceeds equipment the reserve funds and the of phonographs and covered that executed, was, accordingly, properly phonographs, after deduct- and in- sale thereof, applied been expenses principal burden ing had cludable in the debt. The plead notes; prove usury that Maestro does not and which in reduction of the notes; appear on instrument rests on the face of liable for the net balance party guarantor Cacioppo seeking is liable as the instrument. to avoid obligation. Daily also found Consoli- Maestro’s The court See Mines Catalina Co. v. Co., Copper under- dated the instant transactions were P.2d found, “voluntarily” implicitly taken and not 320. The trial court agree, appellants “under reason of coercion.” we not sus- duress here did tain that burden. Appellants have <Cacioppo Maestro and
assigned eight appeal, Second, on this *7 herein, we hold there is that no merit original payee to and As creditor. in stated assignment of error based such on conten- Fidelity Building Collister v. Inter-State & tions. Ass’n, 427, 439, Loan P.2d
626, 631,
zer where there discharged obligation.” of all buyer shall any of the notes. mortgage or *9 232 only rights Act Sales confer “no Conditional was claim that as there
Appellants con- buyer conditional under a prescribed in on the in resale” here the manner Bogert, Stevenson, in Commentaries was tract. As stated buyer, 44-319, the A.R.S. § Sales, Laws Uniform 2A Maestro, party Conditional secon as the discharged, n Annotated, 117: discharged. liable, § darily likewise indeed, it and, is conceded shows record drafts- “It the the intention of con did by Wurlitzer sale made Conditional men of [Uniform Uniform provisions 19 form to provide in sections Act to Sales] Thus, in the absence Act. provisions Sales Conditional 23 the resale [containing hereinafter special circumstances enacted in A.R.S. §§ 44—319—323] from relieved discussed, would be purpose system, for the foreclosure sale resale of a liability, the absence because equity the condi- protecting Conditional prescribed the Uniform as return buyer insuring tional Stevenson discharge both would part Act Sales proportion to him of such (see 44—323) Maestro (see A.R.S. payments equitably § him”. as are due See Commercial 44-520). also A.R.S. (Emphasis added.) Inc., Hudson-Essex, Phoenix Co. v. Credit Stapley Rogers, In O. S. Co. v. Finance P. Ulster 33 Ariz. 1072, 1074, this Court 216 P. Schroeder, App.Div. Corp. v. stated: 682, 684. N.Y.S. pro- purpose the law was “The appropriate to the instant question trans- buyer, seller in tect the such buyer has is whether—where case protection.” needing usually actions not or validly was released waived resale Athens Waverly, & Sayre See also resale would liability prior time a to the Co., Transp. Truck v. General Motors Co. indeed, required, or been have otherwise F.Supp. 285, 286, court D.C., 36 where the has, effect, in seller-assignor con- where the said: in liable absence of a sented * * * seller-assignor lia- statutory resale—the provisions for resale “The noncompliance re- with the despite the protection of condi- ble for the are there provisions the Uniform Conditional oppression by sale their vendees from tional * * conclude that the seller- We Act. vendors to be liable cir- assignor continues such in- provisions, in the resale or Nowhere cumstances. part Act, guarantor, is a deed Maestro, seller-assignor, or point resale endorser is that the The essential to or any rights the Uniform accorded bene- involved, of referred here provisions, deliver- automobile and assignee retook entitled only Thus, fits. effect reviewing In 44— ed to the seller. (A.R.S. of the sale personal notice stated: the Court the above transactions ; buyer may only demand 319) buyer is 44-320) ; (A.R.S. § assignment in the “The defendant aft- proceeds balance of entitled property agreed, case at bar if *10 44-321). er (A.R.S. resale § the him, repossessed and was to delivered which of under course the rule “buyer” statutory of definition The case, supra Commercial Credit Co. [33 the buys hires person who to include “the discharge the 1], P. would sale, or by the conditional goods covered liability, purchaser any further in interest of legal any successor pay- that he himself would assume the 2), 44—301,subd. person” A.R.S. (see obligations pur- ment of the the seller, either clearly not include does the chaser. This is more than a guaranty; rights his assigned he before or has after independent it is an agreement to be- party. fact and interest a third The to principal come the debtor under the assign rights seller the seller circumstances forth assign- set in the un agree secondarily to be for the liable ment.” at page 391, 56 Ariz. 108 P.2d obligation paid underlying the balance of page at 383. position does into that of not convert his significant point The of the Pacific Fi- buyer con the him to benefit entitle the case the resale, nance is that absence of a buyer. by ferred Act the the although discharged it the buyer, did not Corp. of Finance seller-assignor Our decision in Pacific relieve the liability. The Burkhart, 383, 108 seller-assignor California 56 Ariz. continued to be liable be- authority proposition for the it agreed P.2d is cause had be so notwithstanding “buyer” seller-assignor is not the the absence a resale. The statutory sec- Condi- meaning the (now, within Uniform tion 44-326), A.R.S. which declares There, defendant tional Sales Act. the agreement that no “buyer made be- an automobile conditional seller under fore or at the time of the making the con- * ** assigned contract all its interest thereunder tract shall constitute a valid waiver of assignee if the re- agreed were to provisions,” was not considered [resale] possession applicable take automobile from be to the seller-assignor. That seller, purchaser it and deliver to the would, however, section have invalidated assignee would liable for the agreement seller be the same if buyer, made unpaid balance of After the contract. it prior because was buyer’s executed contract, on purchaser defaulted default. Stapley See O. S. Rogers, Co. v. Phoenix Act had supra; Co. the Uniform Conditional Sales Credit Commercial liability Sayre Hudson-Essex, Waverly, all Inc., ceased when he released of supra; was by Wurlitzer, Motors Transp. which had succeeded to & Co. v. General Athens formerly rights therein. held Co., supra, cited Truck and cases seller Thus, buyer, Stevenson, resale buyer permitted waive the Maestro. when he rights provisions only longer based agreement an no had enforce, default. after and when one else new and made could no consideration Wurlitzer, Co., 218 N.Y. rights, Fisher to enforce those See Adler v. Weis & entitled statutory similarly, duty International no to make a 112 N.E. Mack had Co., Trucking duty resale. no without Corp. Motor Truck v. Thelen There can be 952. 75, 83 A.L.R. 'to enforce right 237 N.W. correlative else 205 Wis. someone See, Annotation, duty; “duty” and generally, illusory A.L.R.2d it liability Thus, not to be seller-assignor duty held therefore no at all. Maestro’s rights released, not “buyer” continued or to be entitled to when Stevenson was provisions any provisions the resale under because of Uniform had Act, of the Act. Conditional Sales but because expressly agreed that event. liable in conclusion—that of the above effect Second, agreement Stevenson’s seller-assignor, *11 buyer, and not the construed, Wurlitzer, reasonably with con provisions of rely the resale entitled to on is provisions a stitutes of the resale waiver that Sales Act—is Conditional the Uniform above, As noted Act. continued, liability of Maestro herein validly by agree statutory waive resale resale, nonstatutory despite Wurlitzer’s sup ment entered into after default and three reasons. by ported instant new consideration. The was, by terms, after First, repossessed agreement its executed when Wurlitzer “again had in phonographs, Stevenson Stevenson was default to” Wur sold the and liability $5,000 payment made from all litzer. Wur released Wurlitzer been clearly and time new notes. At that litzer Stevenson furnishes contracts under the adequate rights had further in the and consideration. no Waiver of the Stevenson and, accordingly, resale, though expressly not is to, had no in referred phonographs provision protectable implicit in under the that which were Stevenson will terests and, particu phonographs Act Sales Conditional deliver Wurlitzer at Uniform provisions resale location larly, thereof. their then and “will under recommend party as a the owner of the location status interested in the His con continue “buyer” you contract as a under with sales deal ditional same man- [Wurlitzer] ner has with us is as the owner dealtfe “under guaranty, terms [Steven- of his provided advantage agreement not position further son].” to take location to the property is suitable payment “the thereof. guaranteed He ** where it is installed and used possessory waived foreclosure you agreed Stevenson also “to surrender remedies. The other defendants [the interest right, require- our title and buyers] could waive these [Wurlitzer] ** In the in and to each location ments, but he could did.” fact that light provisions and the of these page N.Y.S. at “all released Stevenson agreement In the case agreed instant Maestro nature,” of whatsoever claims demands “compound could release” delivery of we that Stevenson’s conclude Stevenson, rights could “release and all constituted to Wurlitzer
phonographs against, enter consolidating into contracts the Act. provisions of the resale waiver of with” Stevenson, and could hold liable without first against proceeding Ste- assignments Third, the contract venson. Although the language above does by Maestro executed and note endorsements not expressly refer ato “discharge” agreement a consent or constituted buyer Stevenson, which here occurred even to Wurlitzer Maestro to liable operation (see of law A.R.S. 44-323), the Stevenson, of Wurlitzer’s because though terms “release” and “discharge” have been provisions noncompliance with synonymously. defined See Law Black’s Act, no Conditional the Uniform Dictionary, “Discharge,” “Release”; Al- That such a the notes. longer liable Shoes, bert’s Inc. v. Crabtree Construction the seller- enforceable consent is Co., Fla., 491, 492; 89 So.2d Friedman v. from our Maestro, clear assignor, Lockheed Corp., Aircraft D.C., F.Supp. Corp. of Cali Finance Pacific decision 530, 533. As stated in Rodes, Davison v. Esch, Burkhart, supra. Lewis fornia Mo.App., 299 S.W.2d 594: 77, holds N.Y.S. 155 Misc. * * * “The repossessed There, word ‘release’ the seller effect. same [i]n * * * literal its sense means ‘dis- conditional by a covered property ” charge.’ in accordance to sell but failed contract Conditional the Uniform terms *12 conclude that the We discharge of Stev- failure held that such court Act. was in the enson circumstances of this that an liable, buyers but not the rendered scope the case within intended of the writ- buyers’ guaranteed the who defendant other ten consents and waivers executed Maes- obligation, favor in tro of Wurlitzer.
236 nonstatutory Appellants assigned as have not
We hold that Wurlitzer’s equipment appeal they did (although error on this phonographs and resale of the reply in the liability on raise it their brief for first did not relieve Maestro price notes. the at which time) the and conditional sales contracts repossessed phonographs and sold re inapplicability of equipment represent properly did provisions sale Uniform Conditional of the property. fair market value Such is mean, however, Sales Act does not sue was raised evidence was offered repossesses property creditor who trial, however, at the im thereon and was may appropriate security obligation an plicitly rejected finding of the trial preju property use to his own or to proceeds ap court of sale were creditor obligors. dice Where plied to reduce the amounts due on loses, misapplies or willfully negligently or notes. We hold that there is sufficient evi re security, obligation is harms the support in dence the record to the conclu Se pro duced Restatement tanto. See of the trial court. sion Notes, 132; Britton, curity, Bills having disposed ap- The above of all of seller, assignee, his The conditional 292. error, pellants’ assignments of judg- fairly so property must “deal who' sells ment is affirmed. reasonably poss price to secure the best as ” * * * A.L.R.2d 49 (Annotation, ible STRUCKMEYER, J.,C. L.‘ JACK bring its make it 15, 57) “obligated OGG, Superior concurring. Judge, Court * * * for account market value and fair Note : MERCER Justice J. JOHNSON * * * between the amount difference disqualified himself, the Honorable having value of the fair market it and the owed OGG, Superior Judge of the L. JACK Johnson, 61 Co. v. Contract (Motor car” Yavapai County, Arizona, Court 321). See also Ga.App. S.E.2d participate sit stead and called Co., 223 Commercial Securities Ford v. appeal. the determination of this 253, 256, suggestion of So.2d Miss. Dearborn Mo So.2d overruled
error UDALL, (dissenting). Justice Hinton, Corp. Miss. Credit tors below, finding The court in favor of Thus, Maestro, as So.2d case, plaintiff in treated the situa- on the notes secured liable party simple tion matter of a holder in due to have entitled their rea phonographs, negotiable course aof instrument bringing applied the balance due on value action an sonable unconditional endorser majority thereon. The herein has arrived notes.
237 Supe- 437, overruling 434, expressly result, a conflict- A.2d somewhat on at the same Corp. rior McCrane Finance A. courts v. Both grounds. of ing assortment John 842; Re- Motors, 401, 115 of 180 A. recognize true nature have to the failed N.J.L. statement, Contracts, is to note 235(c). The by a seller one conditional the action as the obligation created upon condi- founded the deficiency judgment recover a obligation and the that contracts extent of contracts. tional sales light gov- be the must determined in the of this the trial court judgment The principles Sales erning of the Conditional reversed, judgment be matter should mind, apply With this the Act. we shall defendant, rea- for two entered provisions relevant facts Act : sons case. this brought based plaintiff suit First: The has point On the central of the case the law com- without sales contracts conditional state clear: In a condi- order for Conditional the terms of the plying with repossessed tional seller who and resold has 44-330) (A.R.S. 44-301 to Sales Act §§ goods perfect right to recover a contracts; upon such governing suits deficiency judgment, comply he with must Act Even if the Conditional Sales Second: viz., notice, statutory provisions, resale plain- apply transaction, did to this not publicity, public auction, sale at etc. A.R.S. recover, failed to tiff since has should not it proce- and 44—322. 44—319 these Unless §§ burden of that the proving bear its followed, dures obligation are “the fairly conducted. of the merchandise was buyer discharged.” A.R.S. 44—323. Commercial The Conditional Act Credit v. Phoenix Hudson- Sales Co. Essex, 1; Inc., 33 262 P. Kole- outset should At it be noted Co., house Conn. Fire 267 Ins. Wis. nominally upon *14 original obligation pay respect provi- the seller in to the debt of to the resale ” * * * 262, buyer. 61, the sions, personal 33 Ariz. right with the since the is P. 3. buyer, buyer and the been released. has See, also, effect, to the same requirements fully Commercial
2. The
were
resale
Corp.
Byerly,
872,
Credit
v.
131
229
by
power
Misc.
buyer,
waived
the
le-
who had the
283;
Corp.
N.Y.S.
Ulster Finance
v.
to waive
gally
them.
Schroeder,
App.Div. 146,
230
243 N.Y.S.
expressly consented to re-
3. Maestro
682;
Acceptance Corp.
Frye,
Central
though
main liable Wurlitzer even
Wur-
to
689,
369;
103 W.Va.
Ac-
S.E.
Central
statutory
litzer, by
obey the
its failure to
ceptance Corp.
Massey,
107 W.Va.
mandate,
discharge
the
had effected a
of
864;
148 S.E.
Commerce Union Bank v.
obligations
upon.
contractual
sued
Jackson,
is conditioned Co., Cal.App. Shepherd 19 Beck v. Fruit steps. 44—323. tory 44-322 A.R.S. §§ 590, 188; 66 Frankel Rosen 2d P.2d v. directs, it is fails to do as the statute If he field, Cal.App. 647, 122; X. L. I. 95 273 P. necessary compelled he be do that to not 262, Moon, 162 P. 49 Utah Stores Co. v. upon simply right so; his to sue he loses Corp., 622; Discount v. Porte Crute La deficiency. for a This statu- the contracts 542; Ind.App. 573, and see 167 N.E. 89 entirely self-executing; tory mandate is Williston, Sales, 579(b); 78 Sales § C.J.S. beyond require not “enforcement” it does protection to 600(b). The Act affords the affirmative de- the establishment both, but allowing him to do the seller plaintiff that the seller failed to do fense compliance statutory upon with the the statute directed. what Virginia requirements. Mack West resale 667, majority opinion Brown, 139 W.Va. 81 S.E. Co. v. The declares that failure com to intention of the Act 108. The seller’s so Conditional Sales 2d sole inevitably buyer seller, in the loss of his protect ply from the results is to provisions must action. all the be considered cause of that
240 rights
2. buyer. Waiver Con- statutory prohibition against such trary majority opinion, to the it is our feel- waivers buyer (A.R.S. 44—326), ing buyer that the (Stevenson) could not possible it is buyer agree for to and did effectively statutory waive the procedure which varies from requirements. majority The has shown statutory plan. Adler & Fisher v. Weis that, by agreement between Co., release 218 Waverly, N.Y. 112N.E. Wurlitzer, Sayre Stevenson and & Transp. Athens Co. General obligations freed from on the contracts. Motors Co., D.C., F.Supp. Truck 285. emphasize They necessary re- also However, in order for such a waiver to deprive buy- sult of this release was to effective, be requirements certain be must security. any rights er of whatever met—the waiver statutory conditions import majority Yet the clear hold- must default, clearly come after it must be ing point buyer may on this is intended, and it given adequate must be for rights possess, which he does not waive new running consideration from the seller guarantor. of his the detriment Thus buyer. Waverly, Sayre & Athens liability, buyer, remaining has no is who Transp. Co., Co. v. General Truck Motors enlarge liability of the sure- allowed supra. alleged Here the waiver did occur law, it, ty. as we understand is that default, express, after but it was not nor legal rights party one to a no waiver any was there consideration which could deprive be can effective to an- transaction support agreement. protection may party which accrue other agreement, terms of the release See, Savin, Gholson v. 137 Ohio him. waiver, which are said to constitute the 551, 31 N.E.2d 75. A.L.R. St. make no mention of such waiver—nor so, particularly be where the must This they just do indicate what being is waived. party can have no effect waiver appear It does willing Stevenson was right, release the purports to one who forego at statutory least one of the re right waive he does not may not quirements—that which calls for the re Arizona Title Guarantee &
possess.
Trust
possessed
being physically
merchandise
Homes, Inc.,
84 Ariz.
v. Modern
Co.
present at the site of the sale. Such a
330 P.2d
Bulldog
waiver
valid.
Concrete
assuming
Corp.
Taylor, Cir.,
But even
Stevenson could Forms Sales
legal protection
validly
However,
waive the
as far
F.2d
A.L.R.2d 1.
there
concerned,
clear
as the defendant
no reason to believe that
willingness
*16
upon
particular
facts of this case that he
did
this
imported
to overlook
defect
that,
spite
is well
forego
do so.
It
settled
intention to
statutory pro-
an
all the
In
firmly
distributor-guarantor.
Arizona
tro and another
law
tections.
ac-
these
voluntary
charging
payment against
is “a
that waiver
established
* * *
counts,
“collection
treated it as a
relinquishment
right.”
a known
Estate,
mon-
42,
cost.” It
190 P.2d
cannot now contend
In re Brandt’s
ey
497, 501;
expended
reality considera-
County Arizona Edison
thus
was in
Yuma
v.
directly
Co.,
given
65 Ariz.
180 P.2d
No such
tion
868.
for a waiver
parties
relinquishment appears
opposed
the face of
on
to the interests
document,
implication
charged.
of such
and an
whom it was
justified.
waiver is not
continuing
3. Consent of defendant
been
previously
Reference has
liability.
Steven-
If
waiver was intended
v. Phoenix
Credit Co.
made to Commercial
valu-
son,
given for
it could
be valid if
Hudson-Essex, Inc.,
262 P.
33 Ariz.
the seller
running
able consideration
from
quite
situation
a fact
That case involved
Athens
buyer. Waverly, Sayre
&
There the
before us.
that now
Co.,
similar to
Transp.
Motors Truck
Co. v. General
liable
to remain
consented
guarantor had
supra.
no
consideration
There was
extent,
its full
original contract
on the
upon the
majority rely
in this case. The
prac-
in the resale
spite
known defects
that,
agree-
fact
at the time
the release
plaintiff. When action was
This,
ment,
tices
$5,000
paid
to Stevenson.
upon
en-
guarantor
brought against
say
they
supplies
requisite considera-
contract,
conditional
analysis
reasons:
dorsement
tion. This
for two
fails
grounds
demurred on
First,
payment
defendant
parties
did not treat the
upon had been extin-
obligation sued
waiver;
they ex-
as consideration for a
through noncompliance with the
pay-
pressly
purpose
guished
stated that the
provisions. The
statutory
demur-
ment was
Stevenson to disclose
to induce
sustained,
appeal this Court
mention
of the machines. No
rer was
locations
This decision
appears
judgment.
with this
of a waiver
in connection
affirmed
no
proposition that
payment.
payment bargained
authority
A
for and
for the
clear
can
supply
sales contract
purpose
cannot
made
one
action
a conditional
sepa-
compliance
lacking
entirely
consideration
be maintained without
de-
aspect
though
Yuma Na-
rate
of the transaction.
Act—even
Conditional Sales
has consented
guarantor who
Balsz,
fendant is a
tional Bank
Yuma
28 Ariz.
plain-
performance by
Anno-
to the defective
generally,
237 P.
and see
tation,
$5,000
Second, the
tiff.
did not come Corp. of California Pacific Finance In Burkhart, allegedly given, 56 Ariz. 108 P.2d waiver was but Maes- *17 242 guaranteeing upon heavily majority, performance the
relied the contractual in buyer. the The judgment liability Court a defendant’s based its reversal of a upon upon not guarantor favor of the defendant based the conditional sales con- case tract which guaranteed, upon factual that he distinction which removed but own purchase. from contract the rule set down in Commercial of Inc., Hudson-Essex, Credit Co. v. Phoenix In the case, any liability instant the supra. case, In defendant the earlier the defendant must arise from the conditional promised obligation had the to assume no contracts themselves. There was case, buyer. the the defend- In the latter independent guarantor undertaking by the the broader: undertaking was much ant’s to become principal the through debtor ac- would promised himself defendant that he purchase tual mer- delivery the repossessed merchandise purchase the chandise. In fact, a Maestro was offered owed then plaintiff, full amount for the chance after repurchase the default to contract, made delivery if were under the $50,- on its machines own account for some after period designated to him a within cancelling thus the conditional sales said: agreement, the Court default. Of this obligations, and it refused the offer. promise “ Maestro’s “guarantee sole was to * ** guar- a is more than This payment promptly when due anty; independent agreement it is an every amount of each pay- installment principal under debtor to become able payment thereunder and the on de- as- set forth in the circumstances mand of unpaid the entire balance in the * * * signment. We are of * * any event of default complaint up an inde- opinion sets The fact that the endorsement of the con- by the defendant to pendent agreement tracts also contained a broad waiver of de- debtor, liability principal a assume as fenses is not sufficient transform what is surety, guarantor or un- as a and not clearly “independent guaranty a into an alleged therein the circumstances der agreement”, in the terms of the Pacific him, delivery repossession and Finance case. The distinction drawn ” * * * 391, 392, P.2d inapplicable that case is to the facts be- fore us. principle beyond the distinction of law is dispute which clear It is that a guarantor that the is entitled rested was defendant to stand on the decision actually agreed of its contract. Bank to become terms of Italy case merchandise, Bank, than, Merchants’ National rather N.Y. purchaser 211; case, Confections, N.E. Chozen merely the Commercial Credit Inc. v. 866; majority concede that Wurlitzer did Johnson, 221 19 S.E.2d N.C. Co., duty have Tyler obligation, Tex. at the time Kidd-Scruggs Hotel Co. bring equally property, clear the sale make it 566. It is
Civ.App., 270 S.W. fair market value and account liability is delimited guarantor the contract Maestro difference between arising under obligation survive amount owed it the fair market value guarantees he and does However, plaintiff property. debt. Val contractual discharge of that Shumway, Phoenix v. herein has recover without ley Bank of been allowed to National Na having showing made Merchants affirmative 163 P.2d 63 Ariz. *18 Stone, 243, duty N. duty obeyed. 5 Mass. been If such Bank v. 296 has
tional defendant, Ac 430; party is owed should Baer General Motors then that v. E.2d supra; performance Corp., Commercial Credit be allowed to enforce the ceptance Hudson-Essex, Inc., supra. Otherwise, language thereof. to use v. Co. Phoenix buyer’s obligation majority, ‘duty’ under the of the an illusory when Thus, is “[i]t extinguished, duty in accord and therefore contract no at all.” was necessarily it 44-323, A.R.S. with ance The private sale in this case was made at liability guarantor of the is follows notice, sale without and all of the facts sur- required by result is discharged. This also rounding peculiarly said sale were within case, holding in the Commercial Credit our knowledge of Wurlitzer. Defendant supra. place was not informed of the time or of Resale Fairness sale, goods nor was told to whom the nothing had been sold. There is determined that majority, having The property record to show that the was sold provisions of the Conditional clear for its fair market value or that Maestro transaction, main- apply to this Act do not given credit on its account for the fair protection available tain that property. duty market value right its to demand herein is defendant affirmatively plead plaintiff, reselling goods, “ prove that it had met obligation its un- * * * fairly so as to secure deal property to sell der the law for the fair An- Citing price reasonably possible.” best market value and to account for the same. 15, we notation, Although A.L.R.2d 57. 49 presumed price While it often that the is duty plain- agree do not sole fairly at a sale conducted received accord- fairly regard deal with in this was to tiff reasonable business methods ing to is a fair security, upon this we do feel that even properly upon price, the burden the seller requires a re- basis the record before us prima circumstances to make a versal. under 244 P.2d 862 354 security been showing that has
facie Obrecht v. reasonably disposed (Cf., of. Appellant, Arizona, STATE of 1, 119 A. 385, 2 Crawford, A.2d 175 Md. Lumber 1129; Arkansas Wisconsin & L.R. Eugene BOGARD, Appellee. D. Co., Mo.App., 236 Lumber v. Buschow Co. No. 1168. Cabot, 410; Derami, Inc. B. S.W. John 664; Inc., App.Div. N.Y.S.2d Supreme Court of Arizona. Rose, Co. v. Texas Louisiana Lumber & Aug. 17, 1960. Williston, ; 3 Tex.Civ.App., S.W. 444 547; Sales, dealing buyer to ac by the
goods a refusal after them; also, Music compare Knudsen
cept P.2d Masterson, 121 Utah
v.Co. showing good proper in which a very similar a situation made in
faith was particularly so case.) This is
to the instant knowing and of
when, here, means of of the sale
proving the reasonable fairness knowledge of the peculiarly within the Moline, 229
plaintiff seller. Wilson v. Callis,
Minn. Lake v. 38 N.W.2d finding of A.2d
202 Md. *19 proceeds lower court due applied to the amount
sale were reduce way gives notes face value thereof less a reserve accepting fund. per originally less month required. than assigned the conditional con- sales 28, 1955, orOn about following Wurlitzer, thereby providing tracts to June continuing Stevenson’s defaults on the guarantee pay- “we [Maestro] notes, Wurlitzer and Stevenson in- entered promptly ment when due of the amount agreement letter which provided, in every pay- each and installment substance, that Stevenson would deliver and payment thereunder and on able turn to Wurlitzer at over their then loca- unpaid demand of the entire balance coin-operated tion the 100-odd phonographs any in the event of default equipment covered the above mort- requiring assignee without first gage and conditional contracts, proceed against buyer. pay said We would Wurlitzer Stevenson the sum of note, fund, provided that said reserve agreement also $500 $5,000. The $1,500 by Greene); paid Wurlitzer “mutual release” of constituted unpaid original Stevenson of the three between balance and demands claims nature,” notes, including $23,540.28 (which included “of whatsoever Stevenson notes, Wurlitz- proceeds and that from the credit for sale actions
Notes
errors some notes claimed usurious disposed briefly. They favor were executed in contracts operations Maestro, and, claim that payee, Wurlitzer’s were accordingly, any against public policy alleged paid and amounted to busi- excess interest was to be compulsion. ness Such re- contentions were Maestro for its own benefit. It clear that j explicitly implicitly by ected Find- usury the defense of is available ings Fact. On maker, the record Maestro, debtor or basis and not to
fact the action is notes 983; Capitol 65 N.W.2d 46 A.L.R.2d by conditional contracts— secured Corp. Blake, District L. A. W. 136 Misc. upon the themselves— rather than contracts 651, 241 N.Y.S. Mack International provi- remove the case from the does not Corp. Truck Motor v. Thelen Trucking The of the Conditional Act. sions Sales Co., 205 Wis. 237 83 N.W. A.L.R. contracts, being part notes and the transaction, separable. They are not same majority gives together determine le- why must be taken three reasons See, plaintiff herein, Prize, admittedly who gal of either. First Inc. effect stands in Tex.Civ.App., position Ins. a Co., seller, conditional Fund v. Fireman’s should 939; Friendly Consumer allowed to circumvent the statutory poli- Dis- S.W.2d Foell, N.J.Super. 410, cy in this case: count Co. v. against allegation 1. The brought action was had elected to deal “buyer” goods property, con- under conditional sales as its own tract, case, guarantor but a thereon. the terms of sec- expressly supra, tion 23 44-323], Conditional Act does not [A.R.S. § protection guarantor. discharged any obligation afford There- fore, true, under reason, being majority contract. Such no one had guarantor right discharged from its: statutory “enforce” duties
notes no indication one fairly con or the that the sale was other property sold for its ducted and that fair market value. true, being fundamental facts it is These judgment opinion the trial our be reversed with should directions court plaintiff’s complaint. to dismiss PHELPS, J., joins concurs and in this dissent,