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6. EVIDENCE ~397(1)

RULE.

PAROL EVIDENCE

Anderson Grocer Co., 193 Mo. App. 236, 182 | considered; but neither formal parts nor isolatS. W. 1036; Benjamin on Sales (6th Ed.) § ed averments of fact will be deemed controlling 256. The above authorities are all upon the as against the case substantially made by the question of sufficient compliance with the general character of the facts alleged. statutes of fraud as to memorandum in writ- 5. PLEADING 34(1)-CONSTRUCTION. ing to comply with such statutes. If such Where a complaint contains words which, signatures are good in such cases, they ought if properly arranged, may state two causes of for the same reasons to be good upon such a action, it will be construed as stating the one contract as this. Moreover, the vendor would principally intended. not be permitted by this court, if attempt had been made on its part to avoid this contract of conditional sale, to have denied his signature. It would have been enforced against him. Neither he nor the vendee could dispute they signed this instrument. It was signed by both parties and filed under our conditional sale recording statute. If it was therefore good as to both parties and was entitled to be filed under our statute, it was good as to third parties when so executed and filed, and respondent as an innocent third party cannot complain of lack of notice under the recording act or of having been misled. For these reasons I am compelled to dissent.

(21 Ariz. 77)

SONORA BANK & TRUST CO. v. COMPA-
NIA AGRICOLA DEL RIO MAYO, S. A.
(No. 1619.)

(Supreme Court of Arizona. Dec. 16, 1919.)
1. JUDGMENT 250-CONFORMITY TO PLEAD-

ING NECESSARY.

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It is a fundamental rule of the code system of pleading, as well as at common law, that the judgment must follow the pleadings; a litigant cannot proceed upon one cause of action in his complaint, and recover upon a distinct cause of action.

2. JUDGMENT 250-IN ACTION ON CONTRACT

NOT IN CONFORMITY TO PLEADING.

In action against bank for breach of its contract of sale of Mexican silver money in consideration of plaintiff depositor's gold balance with it, where the bank's answer conceded there was a contract for sale of Mexican money, but claimed that the money sold was Mexican bank bills, and not Mexican silver, it was error to give judgment against the bank for the amount of plaintiff's deposit, on the theory that there was no meeting of minds and no contract of sale; no equitable rights being claimed or equitable remedy invoked, as by demand for reformation of the contract, and neither party disaffirming the contract.

3. JUDGMENT 249-RECOVERY ON DIFFERENT THEORY FROM THAT ON WHICH COMPLAINT PROCEEDS.

Where a complaint proceeds on one theory, recovery cannot be allowed on another. 4. PLEADING

CONTROLLING
PLAINT.

34(1) - FORMAL PARTS NOT IN CONSTRUCTION OF COM

In construing a complaint to determine on what theory it is drawn, all averments will be

inadmissible to explain, vary, alter, or add to The general rule is that parol evidence is the terms of a written contract.

7. CUSTOMS AND USAGES 15(2)—EVIDENCE

OF CUSTOM TO EXPLAIN CONTRACT ADMISSI-
BLE.

Where a depositor, who had a gold balance in a United States bank, contracted with the bank to have the same credited in Mexican term "moneda Mexicana" and "pesos plata," etc., money or silver pesos, and the parties used the in communications which were written in Spanish, held that, where the depositor contended that he was sold actual silver money, and the bank that he was to be paid in Mexican bank bills, evidence of the customs of brokers in such exchanges is admissible, on the theory that parties who contracted on a subject concerning which known usages prevail by implication incorporate them into their contract.

Appeal from Superior Court, Santa Cruz County; S. L. Pattee, Judge.

Action by the Compania Agricola del Rio Mayo, S. A., against the Sonora Bank & Trust Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Compania Agricola del Rio Mayo, S. A., a Mexican corporation, engaged in agricultural business, and hereinafter designated as "the Company," brought suit in the Superior Court of Santa Cruz county, Ariz., against the Sonora Bank & Trust Company, a banking corporation, of Nogales, Ariz., hereinafter designated as "the Bank," for the sum of $150,287.75, in Mexican silver dollars, with interest, or the equivalent in lawful money of the United States. On September 12, 1914, the Company had on deposit with the Bank, at Nogales, Ariz., a large amount of money, part of which was in Mexican money and part in American money. The amount of American money so on deposit was $40,577.69. On September 12, 1914, the Company telegraphed the Bank as follows:

"Telegraph us at what rate you can credit us in Mexican money our gold balance."

To this telegram the Bank replied by telegraph, on September 14, 1914:

"We will credit your gold balance in silver at twenty-seven. Immediate acceptance."

Ariz.) SONORA B. & T. CO. v. COMPANIA AGRICOLA DEL RIO MAYO, S. A. 639

(185 P.)

On receipt of the bank's reply, just quoted, the Company again telegraphed the Bank on September 15, 1914:

"Your telegram to-day. We understand twenty-seven cents gold for each silver peso. We accept this rate and please credit us in silver the equivalent of forty thousand five hundred seventy-seven dollars sixty-nine cents, which is our balance."

which we sold you our dollars, as it is expressly stated in your telegram of September 14, confirmed in letter by mail, and our telegram of said date.

"If for some reason you cannot pay our drafts in Mexican silver pesos, you must credit us with the difference between the value of the bills in which you make the payment of our drafts and the Mexican silver pesos which we have on deposit with you. In other words, you must not charge us your payments in bank bills at par with coins of Mexican silver, which we have in your possession, and with the corresponding discount. We believe that, upon "Nogales, Arizona, September 16, 1914. your revising the telegrams and letters above "Compania Agricola del Rio Mayo, Alamos-mentioned, you will see that we cannot but make Dears Sirs and Friends: We received the fol- our drafts in the manner we have done. Awaitlowing telegram from you yesterday: 'Your tele-ing your answer, we remain,

This last telegram the Bank received on September 15, 1914, and on the following day wrote to the Company as follows:

"Yours very truly,

"Compania Agricola del Rio Mayo, "Miguel C. Urrea."

gram to-day. We understand twenty-seven cents gold for each silver peso. We accept this rate and please credit us in silver the equivalent of forty thousand five hundred seventy-seven On February 25, 1916, the Company made dollars sixty-nine cents, which is our balance.' formal demand upon the Bank for $150.287.75, And in conformity with your instructions we have credited you the amount of $150,287.75, Mexican silver pesos (dollars), which demand The complaint alleges Mex., which at the rate of 27 cents agreed the Bank refused. upon, equals to $40,577.69 gold, which we have that the letters and telegrams quoted consticharged you, and we advise you that the bal-tuted a contract and agreement between the ance in your favor in gold is not that sum, but the sum of $41,327.69, but we suppose it consists in that there must be some of your drafts not yet presented.

"Your truly, Sonora Bank & Trust Co., "C. Rivera, Cashier."

About December 1, 1914, the Company is sued to Mr. German Bley its check against the Bank for the sum of $450, payable in Mexican silver pesos, or in bank bills of the Banco de Sonora. This check the Bank refused to pay, and stated its reasons for refusing in a letter of December 3, 1914, as follows:

"Nogales, Arizona, December 3, 1914. "Compania Agricola del Rio Mayo, Alamos, Sonora-Dear Sirs and Friends: To-day there has been presented for payment by Mr. German Bley, of this city, your draft against us No. M7, for the amount of $450, with the annotation that it is payable in 'Mexican silver pesos, or in bank bills of the Banco de Sonora,' and we beg to call your attention to the fact that your drafts against us are payable in bank bills, without specifying as to what kind of paper, and which pray take notice. Always at your orders, we remain, "Yours very truly,

"Sonora Bank & Trust Co.,

"W. C. Winegar, A. Sec."

On December 21, 1914, the Company answered this letter as follows:

"Alamos, December 21, 1914. "Sonora Bank & Trust Co., Nogales, Arizona -Dear Sirs: We have received your favor of the 3d inst., in which you advise us that our drafts against you are payable in Mexican bank bills, without specifying kind of paper. response we beg to say that we do not accept that our drafts against you are payable in bank bills, as our deposit with you is: Mexican silver pesos, which is the kind of money for

In

parties, and that by the terms of the contract and agreement the Company had sold and conveyed to the Bank the sum of $40,577.69, lawful money of the United States, in exchange for $150,287.75, Mexican silver dollars or pesos, and prayed for judgment for $150,287.75, Mexican silver pesos (dollars), and interest, or its equivalent in American money, and for such other and further relief as might be proper in the premises.

The bank filed an answer, admitting the deposit of gold, or American money, at a time prior to the contract, and sending and receiving the telegrams and letters as alleged, but denied liability for the payment of Mexican silver pesos (dollars), and contended that the letters and telegrams constituted an exchange of American money into Mexican bank bills, and in support of this allegation alleged that by the custom and usage prevailing in Mexico and on the border between the United States and Mexico, in September, 1914, the terms "moneda Mexicana," "plata," "pesos," "pesos plata," meant bank bills or paper money, and that such custom and usage was known to both the Company and the bank at the time the telegrams and letters were exchanged, and that the bank was ready and willing to pay to the Company, or its order, $150,287.75, pesos (dollars), in Mexican bank bills.

The Company filed a reply, denying such custom and usage, and denying that said terms meant bank bills.

The case was tried by the court without a jury, and much conflicting testimony was introduced as to the meaning of the terms "moneda Mexicana," "plata," "pesos plata," The court filed and "billettes de banco." written findings of fact, in which it found that the minds of the parties never met as to

the agreement, and that no contract of exchange had been entered into between them. Based upon this finding of fact, the court found that the parties effected nothing by their attempted contract of exchange, and that the deposit of the Company remained intact in the Bank, having been neither increased nor diminished by the attempted exchange. The court thereupon entered judgment that the Company recover from the Bank the amount of the original deposit, $40,577.69, in lawful money of the United States, together with various items of interest. The Bank appealed. The Company also appealed. Duffy & Purdum, of Nogales, and Armstrong & Lewis and R. Wm. Kramer, all of Phoenix, for appellant.

silver dollars, coupled with an averment that the contract was for the purchase and sale of Mexican bank bills. The bank had the right to expect that upon the trial such issue, and that only, would be tried. The Bank was under no obligation to prepare to meet the other and distinct issue that the Company had on deposit with it the sum of $40,577.69, lawful money of the United States, which upon demand the Bank had refused to pay to the Company, and yet upon this distinct and separate issue the court gave judgment in favor of the Company and against the Bank for said sum of $40,577.69, upon the theory that the minds of the parties never met, and that there was no contract of sale and purchase between the parties. The Com

Barry & Barry, of Nogales, and S. L. King-pany, having based its claim and tried the an, of Tucson, for appellee.

case upon an alleged express contract, was bound thereby, and it was not entitled to recover upon any other theory. Sanders v. Hartge, 17 Ind. App. 243, 46 N. E. 604; Union St. Ry. Co. v. First National Bank of Union, 42 Or. 606, 72 Pac. 586, 73 Pac. 341; IngramDekle Lumber Co. v. Geiger, 71 Fla. 390, 71 South. 552, Ann. Cas. 1918A, 971. The respective rights of the parties depended upon the terms of the contract, if one existed, and if no contract existed the Company was not entitled to any relief in the particular suit. The judgment, therefore, was a clear departure from the pleadings.

BAKER, J. (after stating the facts as above). The particular question presented for decision upon this appeal is whether the trial court departed from the well-settled rule that recovery must be had in accordance with the claim made in the complaint, in rendering judgment in behalf of the Company for $40,577.69, lawful money of the United States. [1] It is a primary and fundamental rule in the code system of pleading, as well as at common law, that the judgment shall be "secundum allegata et probata." 9 Cyc. 748. "Any departure from this rule is Obviously, the trial court placed the wrong sure to produce surprise, confusion, and in- construction upon the complaint when it conjustice." Day v. Town of New Lots, 107 N. cluded that the action was one to recover Y. 148, 13 N. E. 915. A litigant cannot pro- $40,577.69, which the Company had on deposit ceed upon one cause of action in his com- with the Bank. True, it is alleged in the plaint and recover upon another distinct complaint that the Company had that amount cause of action. This would be to ensnare on deposit with the Bank prior to the making his adversary. Southwick v. Bank, 84 N. Y. of the contract; but clearly that is an allega420. The complaint in the case sets up a tion of matter of inducement only, and in no claim for $150,287.75, Mexican silver dollars, manner changes or alters the well-defined iswith interest, or its equivalent in lawful sue made up by the pleadings. This allegamoney of the United States. It is clearly and tion, and other secondary or subsidiary alledistinctly alleged that the Company by virtue gations appearing in the complaint, cannot be of a contract evidenced by certain telegrams treated as stating a cause of action by a depos and letters, purchased from the Bank $150,- itor against a bank for the recovery of a de287.75, in Mexican silver dollars, for the price posit, when the complaint, as a whole, proof $40.577.69, lawful money of the United ceeds upon the definite, clear, and certain theStates, and that the Bank on demand had re-ory that the action is one based upon a confused to deliver the Mexican silver dollars. tract of purchase and sale. "In construing a [2-5] The answer of the Bank concedes declaration to determine upon what theory it that it entered into a contract with the Com- is drawn, all the averments will be considerpany for the sale of Mexican money, but ed, and neither the formal parts, nor isolated claims that the Bank by the contract sold to averments of fact, will be deemed controlling the Company Mexican bank bills. At the as against the case substantially made by the time the parties entered into the alleged con- general character of the facts alleged." 31 tract Mexican bank bills were quoted around Cyc. 84. We are not disposed to charge the 27 cents gold for each paper dollar, and Mexi- complaint with the vice of having a double can silver dollars were quoted around 44 aspect; but, if we did, still we would be recents gold. quired to construe the complaint as stating Here a distinct and narrow issue was made the cause of action principally intended. up by the pleadings, to wit, a claim based "Where a complaint contains words which, upon a contract of purchase and sale of $150,- if properly arranged, might state two causes 287.75, Mexican silver dollars, a denial that of action, it will be construed as stating only the contract was for the purchase of Mexican | the one principally intended.” Santa Fé, etc,

(185 P.)

Ry. Co. v. Hurley, 4 Ariz. 258, 36 Pac. 216. ( concerning which known usages prevail, by The issue joined between the parties was on implication, incorporate them into their an alleged express contract. The complaint agreements, if nothing is said to the contrary. presents squarely an action at law. No equi- Robinson v. United States, 13 Wall. 363, 20 table rights are claimed, and no equitable L. Ed. 653. See, also, Collender v. Dinsmore, remedy is invoked. No demand was made by 55 N. Y. 200, 14 Am. Rep. 224; Walls v. either party for a reformation of the con- Bailey, 49 N. Y. 470, 10 Am. Rep. 407. tract sued on, nor was the contract disaf- A reference to the record will disclose that firmed by either party. We do not see how the evidence offered by the Bank and admitthe court could disregard the alleged contract ted by the trial court, as to custom and usage, and enter a judgment against the Bank on consisted of the testimony of men who were the theory that the relation of banker and and had been for many years in the banking depositor existed, without departing widely | business and money brokerage circles on the from the pleadings. 31 Cyc. 673. border and in Mexico. As we have inti

vary the contract, but to define and elucidate technical mercantile terms employed therein. The proofs tended to show that the terms "Mex.," "moneda Mexicana," "peso," "plata," "pesos plata," and "billettes de banco," as used in the alleged contract, are not to be understood in the strict sense as meaning Mexican coin silver dollars, but that such terms, by custom and usage along the border and in Mexico, should be construed to mean Mexican bank bills.

[6, 7] In the cross-appeal taken by the Com-mated, we think the evidence was properly pany, complaint is made of several rulings received. It did not tend to contradict or of the trial court adverse to the Company's contentions. The final disposition of the case renders it unnecessary really to discuss these contentions, but since that upon a new trial one of these questions will probably arise again, we have concluded to dispose of the assignment upon that question. The assignment referred to is that the court erred in admitting parol evidence of custom and usage to explain the meaning of the language used in the telegrams and letters that passed between the parties. Spanish was the language used in the original telegrams and letters. The translations of these letters and telegrams as they appear in the record were admitted by the parties to be correct. In these telegrams and letters such words and phrases as "moneda Mexicana," "plata," "Mex.," "peso," "pesos plata," and "billettes and not inconsistent with this opinion. de banco" appear. We understand the objection to the evidence explaining the meanings of these words and phrases is based cur. upon the contention that the language used in the communications was clear and plain, and hence that resort could not be had to parol testimony to place a construction upon the terms; that the words and phrases had plain, ordinary, and popular meaning, and (Supreme Court of Arizona. Dec. 16, 1919.) should have been construed by the court without the aid of parol testimony.

The general rule unquestionably is that parol evidence is inadmissible to explain, vary, alter, or add to the terms of a written contract in an action at law. This rule, however, is very flexible, and has many exceptions, and in the multitude of exceptions much confusion has arisen. The authorities upon the subject are in hopeless conflict. We are, however, of the opinion that the facts of the instant case present one of the welldefined exceptions to the general rule.

Parol testimony of a custom or usage, tending to establish the sense in which certain words or mercantile terms are used in a contract, and elucidating the terms used, is admissible for the purpose of ascertaining the intention of the parties. This is on the theory that parties who contract on a subject,

The judgment rendered was outside the issues joined, and therefore a new trial must be had. It follows that the judgment must be, and it is, hereby reversed, and the cause remanded to the trial court, with directions to grant a new trial to the Bank, and take such further proceedings as may be proper

CUNNINGHAM, C. J., and ROSS, J., con

(21 Ariz. 87)

RED ROVER COPPER CO. v. HILLIS. (No. 1716.)

1. NEW TRIAL 119-MOTION AFTER 10 DAYS FROM JUDGMENT TOO LATE.

Motion for new trial made after expiration of the 10 days from rendition of judgment prescribed by Civ. Code 1913, par. 590, serves to invoke no duty of the trial court to consider the motion on its merits.

2. MASTER AND SERVANT 258(8)

-

COMPLAINT BY MINER NEED NOT NEGATIVE STATUTORY EXCEPTIONS.

A complaint of servant, under Civ. Code 1913, pars. 4075 (h), 4077(a), alleging injury from falling into unguarded mine shaft, need not negative the statutory exceptions to the duty to guard the shaft; they being matters of defense.

3. PLEADING 204(2)-DEMURRER TO COM

PLAINT GOOD IN PART.

Overruling of special demurrer was proper where portions of the complaint sought to be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
185 P.-41

eliminated by it were not all subject to the ob- made in order to invoke the court's action jections urged.

4. TRIAL 234(7) INSTRUCTIONS CALLING FOR PRESUMPTIONS RATHER THAN FINDING OF

FACTS.

thereon are mandatory, and a failure to make such motion within the time allowed has the effect of waiving all errors remediable by means of the motion for a new trial. No er

In personal injury case, defendant's' request-ror was committed by the court in striking the ed instruction held properly refused where it required the jury to indulge presumptions from circumstances rather than to draw inferences therefrom and find facts.

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Action to recover damages for personal injuries suffered by the appellee, resulting from the negligence of the appellant. The verdict | was returned and judgment rendered thereon on the 8th day of October, 1918. A motion for a new trial was filed October 19, 1918. On December 16, 1918, the court refused to consider the merits of the motion for a new trial and ordered the same stricken from the files, upon the grounds and for the reason that the motion for a new trial was not made within 10 days after the rendition of the judgment.

The notice of appeal given on December 16, 1918, is as follows:

"Now the defendant in open court gives notice of appeal to the Supreme Court of the state of Arizona from the order striking out the motion for a new trial and from the judgment of the court entered herein and from the whole

thereof."

F. Louis Zimmerman, of Phoenix, for appellant.

F. H. Swenson, of Phoenix, for appellee.

CUNNINGHAM, C. J. (after stating the facts as above). [1] By express provision of paragraph 590, R. S. A. 1913, the motion for a new trial must be made within 10 days after the rendition of the judgment. Unless the motion for a new trial is made before the expiration of such prescribed period, the lower court is not required to act upon such motion, and an order striking the motion is conclusive evidence that the trial court declines to consider it.

The terms of the statute (paragraph 590, supra) as to the limit of time within which a motion for a new trial is required to be

motion. Such order is one made in obedience to the said statute (paragraph 590, supra). See Daggs v. Howard Sheep Co., 16 Ariz. 283, 145 Pac. 140, and cases cited. The motion for a new trial made after the time limit

expires serves to invoke no duty of the trial

court to consider the motion on its merits. [2] The appellant complains of the order overruling its special demurrer to paragraphs 4 and 5 of the complaint. The demurrer is based upon the failure of the complaint to negative an exception in the statute involved. The demurrer alleges:

the

That "there is no allegation in said complaint; that the defendant corporation was not engaged in one of the exceptions to the rule, which plaintiff pleads in his complaint under title 34, c. 3, §§ 4075(h), 4077(a), of the Civil Code of Arizona 1913.

The complaint, in paragraph 4, sets forth the statutory requirements that—

"At all shaft stations a gate or a guard rail must be provided and kept in place across the shaft, except when cage, skip, or bucket is being loaded, but this prohibition shall not forbid the temporary removal of the gate or rail for the purpose of repairs or other operations, if proper precaution to prevent danger to persons is taken."

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The facts pleaded in the complaint set forth that the plaintiff, in the course of his duties and as he had a right to do, entered upon the unlighted and unguarded station, and, stepping on a piece of small pipe left on the floor of the station, the pipe, rolling under his foot, caused him to stumble in the dark and fall into the shaft, and thereby he was seriously injured.

The question raised is whether plaintiff failed to state a cause of action because he failed to allege that the cage, skip, or bucket

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