Azevedo v. Azevedo

THE COURT. This is an appeal from a judgment granting a nonsuit in an action seeking to compel an accounting under a written contract of sale.

The contract was entered into on February 8, 1926, between Antone. Y. Azevedo, party of the first part, and his two sons, defendants herein, as parties of the second part. Thereby Antone Y. Azevedo agreed to sell and the sons agreed to buy certain farming and dairy machinery and equipment and certain cattle, horses, hogs, etc., situated on the ranches and premises occupied by the Azevedo family, together with an interest in leaseholds appertaining to certain of the premises. The contract provided:

“That the party of the first part hereby agrees to sell, and the parties of the second part hereby agree to buy all that certain personal property, farming and dairying equipment, ... at and for the sum of Eighty Four hundred ($8400.00) dollars, lawful money of the United States of America, which said sum said parties of the second part agree to pay on or before three (3) years aifter date, it being particularly understood and agreed that said parties of the second part are to farm and dairy said ranches in a good and husbandlike manner, and that all net profits made and received from the operation and conducting of the same are to be paid annually and on or before the first day of November of each year to said party of the first part and be applied on account of the purchase price of said personal property. ...

“It is further understood and agreed that the parties of the second part may and shall have immediate possession of said personal property and business, but time is of the essence of this agreement in each and every particular, and that this agreement shall bind and inure the heirs, executors, administrators, and assigns of the respective parties hereto.

“It is further understood and agreed that title to all of [488]said personal property shall remain in the party of the first part until he has been paid the full purchase price thereof, and that should it be to the interest of the parties hereto that some of said personal property, such as cattle and hogs, should be sold that the same may be sold, but that the entire sale price thereof shall be paid to the party of the first pari and apply on account of the balance due under this agreement.” (Emphasis ours.)

The complaint was filed on March 31, 1938, and is based upon the contract. It is alleged therein that after the making of the agreement Antone V. Azevedo assigned to his wife Anna Azevedo all of his right, title and interest in and to said agreement, and the personal property therein described, together with all moneys due or to become due by virtue of said agreement; that on July 4, 1937, Anna Azevedo died; that plaintiffs are the duly appointed, qualified and acting administrator and administratrix respectively of Anna Azevedo’s estate; that in pursuance of the agreement the property mentioned therein was delivered to and accepted by the defendants on or about the date of the agreement, and that ever since they have been and now are in possession of the same except what they have sold; that defendants have realized net profits, and that they have sold various articles of property mentioned in the agreement and that they have received as net profits and for sales approximately $8,400; that out of this sum they have paid only $2,765 on account of the contract; that a demand has been made on them for an accounting, which they have refused to make. It is prayed that defendants be ordered to account to plaintiffs for net profits and receipts from sales and pay over to plaintiffs sufficient to pay the balance due on the purchase price, together with interest. No recovery of any of the property is sought.