*1 346 P.2d 146 corporations (1) Municipal are “wrongful liable for acts” INC., AUCTION, PHOENIX AUTO gov- employees performance of Appellant, corporation, functions; ernmental AS STATE AUTOMOBILE INSURANCE housing (2) operation of the SOCIATION, Appellee. corporation, function, project governmental awas No. 6536. city by the agreement as made Supreme Arizona. Court of

manager “wrongful act” Linsenmeyer; and Nov. 1959. Mrs. city

(3) not liable Therefore the the contract. clearly from what appears it believe

We city manager have said that the

we above city council duly authorized facts, to knowledge of all of the full in involved the contract of lease

enter into being counsel in This true litigation. upon seeks build defense

this last-ditch in logic. It no foundation has sand. city authorized if the council

Because lease, city

manager to execute no executing it committed in

manager any sense of negligent in nor was

wrong,

the word. trial reasons the court foregoing

For appellant’s failing grant err

did verdict, re- a directed

motions jury instructions offered certain

fusing therefore, hereby Judgment,

affirmed. UDALL,

STRUCKMEYER, JOHNSON BERNSTEIN, JJ., concur. *2 Sullivan, Phoenix, and &

Langmade ap- Nogales, for Haythornewhite, F. James pellant. Huffsteter, Raymond Perry &

Perry appellee. Phoenix, for ROYLSTON, Judge. Superior Court 33& pay- Auction, made Capps defendants Wilson Auto appellant, Phoenix appellant would de- ment by check which Charles Wilson Inc., against an action filed posit of business. On Used in the normal course Capps, Miracle Mile dba and Fred 1955, H. 14, appellant’s president, L. July Automobile Cars, surety State Boniface, company to defendant sold 1951 Cadillac Association, bonding Insurance $1,500. made Payment for matter in Arizona. business doing Douglas, drawn on Bank of jury. check sitting without was tried to the court Tucson, appel- Arizona, payable Auto to Phoenix The trial court found favor Auction, Inc., Mile Capps, “Miracle defendants, signed against lant Wilson Capps.” Used Boniface Insurance Cars Fred Mr. Automobile but in favor of State particular it. testified transaction that this appellant’s claim Association appeals from no or 30. Auction, different the other 25 Auto Inc. from Phoenix presented payment for finding. this latter Defendants Wilson 1955, drawee at which appeal judg- bank on perfected no cover ment, them. time there were final as to insufficient funds has so it become check, Auction, be referred so returned to will Phoenix Auto Inc. it.was Aug- It was later appellant, Insurance Automobile *3 State 23, ap- 1955, ust again and was returned appellee, but Association as Wilson and defendants, by pellant name. as or there were insufficient funds because in the account. Appellant corporation en- is an Arizona an auto- operating in business gaged the of at chief the bank testified at clerk and Phoenix. mobile auction in Wilson trial, the and records the account reflecting Capps were, material this at all times Miracle Mile were ad- the Used Cars of case, engaged co-partnership as a under These in evidence. records cover mitted Cars, in Mile Used Tuc- the name Miracle November, period the 1955. The June principals, Capps, as son. Wilson normally account was active and showed appellee, filed surety, executed and had deposit sufficient on to cover the an automobile the State Arizona of 25, July only on check and for the five- pursuant to A.R.S. 28-1305. dealer’s bond § period August 11 day through August 15. in the time This effect at of bond was slightly show over The records on the $100 complained of. acts written, 14, July check date $1,100 presented, the date on slightly over Capps had made Defendants Wilson There was some on the appellants July $600 22. purchases similar 25 or 30 presented, prior date that the check was 12 to 18 months second period of during transaction, 23. 14, the August At each July 1955. 340 an-

Although an filed benefit any person Wilson loss of suffers who ap- appellant’s complaint, swer to neither reason licensee.” any of unlawful act of peared appeared act”, attorney trial and no “unlawful meaning of term in their only testimony statute, behalf. The as used in particular has Boniface, appellant’s president, that of Mr. construed in Insur- Commercial Standard representative and the the Bank ance West, 359, Co. P.2d v. 249 Ariz. 74 Douglas. 830. adopted We there rule set forth 234, in Greene, Hartman 190 La. v. 193 needs this court only question which 390, 391, So. which states: evi- any determine there was whether court the trial dence on which “The term ‘an unlawful act’ does company bonding could find in favor of act; not mean necessarily a criminal act, any means wrongful or a tort — wrongful (not act breach involving a by this numerous times As stated contract) a civil action which evidence, court, appeal, must be con * * will lie *.” light most favorable to sus strued Appellant Capps, Oakley, contends that the act of Hansen v. taining judgment. $1,500 14, 307, drawing Appellant 263 P.2d con check on Ariz. 807. only falls “un- conflict in the within this definition of is no tends that where lawful act” but is facts, “not bound the con sufficient to constitute a this court court, 13-316, criminal are violation the trial but at liber of A.R.S. clusions of § legal “Drawing own conclusions from or draft on our insufficient ty to draw Brown, defraud; account Sanders v. with intent etc.” the admitted facts.” It is 941, 943; P.2d Hansen asserted that the trial correctly court Ariz. could supra. only law reach one Oakley, This rule concerns conclusion from the facts In legal disagree. court’s conclusions. as stated. We the trial The trier fact case, necessarily trial court was must needs have instant decided as a ques- factual e., tion, finding, i. required to make factual “Was there an intent to defraud?” an intent whether there was *4 Is it useless to appel summarize Capps. part trial of The Wilson arguments leading lant’s to the conclusion court, judgment, must have found by its an that such intent existed. ques sup there intent. Is evidence to

no such is any tion not whether member of this implied port finding? this court, sitting as a trier of case, fact this 28-1305, supra, provides Section have reached would the same conclusion required bond “shall inure to trial reached, that the the court but whether there ROYLSTON, Superior support judge to of Court any competent is evidence of County, Pima sit in his by court. We was called to that conclusion arrived support stead. evidence to hold the record contains trial court. implied finding PHELPS, (dissenting). Chief Justice particu- that this testimony disclosed different' from

lar was no I carefully majority opin- transaction have read the same or 30 between other transactions ion in again this case and it causes me to were made parties. representations No oral exclaim with Pascal “How ludicrous Three given. reason, at the was time the check by every blown a breath in direc- days first after the check was tion.” by The conclusion reached the ma- funds sufficient were there jority drawee bank irreconcilably in this contra- case is two Approximately cover the check. dictory plain to the language used two sufficient were three later there weeks previously criminal cases decided period the check for have covered proof beyond Court where a reasonable days. five required, doubt “intent to defraud” was whereas, in “intent the instant case to de- proving an intent to burden preponder- fraud” is established a mere appellant. The trial defraud ance of the evidence. reasonably could court the evidence that v. Meeks, In State 30 Ariz. had not carried P. conclude 1099, 1100, charged mere defendant was with that Wilson burden and appellant, giving pay with an contract insufficient fund ly breached therefore, past-due were debt. Defendant contended under Wilson there $1,500; but since be no the sum of circumstances could intent liable for contract, person than breach that the nothing more for the reason its liable under given parted to whom the appellee-surety was check was time, no new at the consideration hence bond. was not Defendant was defrauded. con affirmed. Judgment upon appeal Court victed to this we necessary prove payee said it was STRUCKMEYER, UDALL and JOHN- actually That defrauded. SON, JJ., concur. “ ^[*] ^[*] ^[*] offense complete it is zvhen shown C. BERN- CHARLES defendant Justice Note. check, representing thereby gave the judge, the trial dis- STEIN, having it zvas and valid and would ROBERT Honorable O. qualified, *5 342 indebtedness, that were

pay knowing the the maker then knew there the case it, cover no in the to meet bank sufficient time had to that he no ftmds to absolutely persons In case the and that it was check. each therefore ”*** ours.) accepted given whom the (Emphasis checks were zvorthless. believing true, representations those and 7, Ellis, P.2d Ariz. 189 And in 67 State prop- parted them to be true with valuable 717, was 719, Ellis in which the defendant pay- erty, accepted and checks in full said bogus false or charged passing a with ment thereof. check, 43- provisions the of Section under at the July truth 14 The stark that on is 2614, A.C.A.1939, a still this Court made $1,500 in time drew the check pre- precise stronger on the issue statement a appellant for full to case as in the authored here. Udall sented Justice him, there Cadillac car then to delivered opinion said: and Doug- exactly Bank in the $114.06 “ general that mak- ‘The rule is partnership las and to the credit delivery to ing of a check amounts and single day, a hour knew there had not been check representation that the is (30 previous or since 14 minute June to representation extrinsic and that days there been suf- previously) when had necessary ele- is not a the check to in the bank ficient funds to their credit itself an offense under worthless ment of check, deposit pay said nor was there on ” (Empha- Citing cases. check acts.’ pay bank sufficient funds to Am.Jur., Repre- False 22 ours.) sis single day following check until the on 64, sentations, p. (Note: 477. Sec. 11, except may been August have check must have been acts” very “Worthless $1,546.33 peri- in the bank for a short the insufficient to include intended July od 25. on act.) check fund deposit record shows a $399.26 25, excerpt partnership July a cor- made on above agree that I $1,552.48 deposit. a total making law on general of the rule of statement rect just have been made slightest not the This could before that there is I assert and day. legal principle bank closed withdrawn involved $6.05 difference July July on 26 case. on checks instant In each case respective $5, $923.32, sums of delivering making the check $563.74 case charged against July thereby were this balance on represent- the maker the drawee only possible entirely 26. “This' It but that: check is drawee to such ed they paid presentation probable July were all be on drawn on will valid ,bm.k drawn.” drawn within minutes which it is In each or appellant? opened again, 26. When intent to defraud Here the bank after men When reasonable should not differ as they left balance $53.77. cashed $1,- Yet, they reason for their checks knew failure to do so. they drew these days majority ignore important chose eleven these given They me, facts which paid. compel also the conclusion previously had not *6 Capps that paid clearly ap- been there were intended to if had defraud that knew pellant remaining ap- account to when he his their delivered check to no funds pellant presented July 26. and drove the away. on Cadillac car pay checks the any majority say men draw oth- seem reasonable to that we as because Can Capps purchased above facts than that and Wilson had from the 25 er inference or period absolutely appellant that for a cars from during knew Capps the 18 months prior immediately preceding the date he made and thirty days to the here of transaction part- appellant check to their involved and that the this transaction delivered Douglas Bank nership according routine, with the of handled account to therefore, an pay to said check and insufficient intent been to defraud possibly had could not be pay woefully present insufficient to the it was instant that case. The conclusion day sequitur. it was issued and de- Conceding the non check on that an intent n to ? present defraud not previous livered appellant transactions with that fact can- Wilson, parties nor de- Neither probative have not sufficient value to estab- action, appeared at the this fendant to lack lish of fraudulent intent in the instant they testify. Why case to did trial of this in the face case of facts which we have trumpet ? The answer do this not previously held to conclusively establish They bank account knew their tongued. beyond fraudulent intent a reasonable they $114.06, only then July 14 was on doubt. prospects they of had immediate no knew receiving any may source sufficient from The intent to defraud have been they intent check. If had no when pay left to conceived Tucson to come they purchase not have would Phoenix to a car to from appel- hand, trial and eager appear plausible at the ex- On the other is it to lant. they previous oath, that infer that plain, ap- under transactions with June part scheme, pellant a or had a honestly expected deal a make were “come- were, deal that assured as it to establish already on” business rela- consummated upon presenta- that would not admit of even a suspi- of said check tion payment fraud in order to enable them that not have been nat- cion of to do Would tion? do, is, exactly they did they get if what thing to do had no for them ural opinion if majority there According nothing? I do not for car Cadillac previous transactions have been similar say this transaction pretend to person have been by de- with a and his checks scheme part a fraudulent of such honored, in- previously fact creates a Wilson, but I do Capps and fendants honesty than shield of which an intent to de- logical say it is more tend to penetrate strong majority that fraud cannot however reached conclusion proof may Appel- in- intent be. clearly establish fraudulent evidence did particular question lant the check in appellant in this tent to defraud separate just bank on two occasions —once case. delivered, after the it was check was when the ma- position appears to be the It deposited Valley with the Bank and was appel- that because jority of the Court slip days returned in three four or win- the teller’s in front of lant didn’t stand attached, marked insufficient funds. It was Tucson Douglas in Bank of at the dow again presented August claim they when July 14 until At 23rd. that time was a balance appel- it, pay money was available maker the credit of the $666.67 recover legal right to its lant lost check. in- above As on its bond. guarantor extremely doubt- timated, it to be I believe *7 Capps appel- If the intent of to defraud appeared agent had appellant’s if ful lant out of the car have been Cadillac could July 25 that window on the teller’s photographed picture in technicolor he had unless his debt have collected would my clearly not mind could have more in line when first waiting portrayed appellant his intent he was unsuccessful opened. If window undisputed than the facts of this case. require would majority then 25 the the title to the When Cadillac car was re- window vigil at said his continue him to appellant leased to it was done money again 11 when August until Capps giving appellant consideration of check. payment of said for available partnership check $1,500 in the sum of that, appears just did appellant Unless which, payment in full thereof according say willing be would majority Ellis, supra, to State v. constituted an un- agent check to its gave equivocal representation “that permit recovery defraud intent representation that a the check is case. to the check itself extrinsic is not a neces- sary upon element of an offense under no such burden imposes worth- law * * can- business men less acts Ariz. If it does [67 anyone. P.2d accept a check 719.] afford opinion I am convinced if the impact down written

handed its adverse

upon the business of merchants and others part

will be terrific. The busi- greater acceptance

ness transactions involves the payment goods purchased

of checks in of accounts due purchases,

previous im- burden etc.

posed upon majority opin- business assuming cannot be met without

ion a risk can

so hazardous no one as- afford to

sume it. judgment of the lower court should

be reversed.

346 P.2d 152 DALLAS, Petitioner,

Robert

ARIZONA ISSION CORPORATION COMM George Jr., Senner, “Eddie” F. E. T. Williams, Jr., Buzard, and A. P. as mem constituting Commission, bers of and Respondents.

No. 6829.

Supreme Court of Arizona. 12, 1959.

Nov. Feighner Evans, R.

Emmett Kitchel Carroll, Phoenix, Jenckes, Earl & H. petitioner.