Graner v. Hogsett

BARTLETT, J. pro tem.

In the first cause of action set forth in the amended complaint, it is alleged that within three years last passed defendants “wilfully, wrongfully and illegally converted to their own use,” certain personal property; together with a demand for the return, and damages in the sum of $20,000 by reason of such conversion. The second cause of action alleged defendants wilfully, wrongfully and illegally converted to their own use certain real estate in Yuma County, Arizona; that plaintiffs received no consideration for the deed and that the property was of the value of $15,000. Save an admission that a demand was made for the property described in the first cause of action, the answer denied all of the material allegations of both causes of action.

Resolving all conflicts in the evidence in favor of the judgment, the record shows the following: On January 4, 1941, plaintiff Louis Graner entered into a contract with one Mary Bradbury to purchase the property described in plaintiff’s complaint for $3,000 to be paid as follows: $50 down, $600 in

30

days, $750 before 60 days, $1,000 on or before 90 days, $1,000 on or before 120 days. The contract

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provided that when the entire amount was paid the property would be conveyed to the plaintiff. It also provided that upon “failure of the party to make any of the payments herein provided, this contract shall cease and determine.” Thereafter, plaintiff paid in all the sum of $1,300, his last payment being made March 13, 1941. He never paid any of the $2,000 remaining to be paid by him and no part of the property was ever conveyed to him.

In May, 1942, over a year after his last payment was made by plaintiff, Avery M. Blount, the attorney for the respondents herein, representing a Mr. Flumerfelt who desired to purchase the real estate described in plaintiff’s second cause of action, and the respondent O. W. Hogsett, who desired to purchase the personal property described in the first cause of action, had a conversation with Miss Bradbury and her agent relative to purchasing this property for this sum of $2,000, $1,500 for the real estate and $500 for the personal property. Thereafter, Flumerfelt forwarded to Blount the sum of $1,500 and respondent Hogsett gave him $500, both of which sums Blount placed in a trustee account. It then developed that appellant Louis Graner, although he was then in default for over a year on his payments under the contract, made some claim to the property. Blount then had a meeting with Graner and Hogsett. Graner at the time was an employee of a partnership known as Forrester Milling & Mining Company, which was doing some work at Twenty-nine Palms, California. Blount outlined the proposed deal between Flumerfelt and Hogsett with Miss Bradbury. Graner then wanted to know what he was to get out of it and Hogsett said he would convey to him a 10 per cent interest in a partnership to which this personal property would be delivered. Graner said he wanted some memorandum in writing and thereafter Hogsett delivered to him a letter which reads as follows: