a cause of action so indefinite and uncertain | carried away and destroyed in each of the years that the precise nature of the charge is not 1917 and 1918, and the time in each of said apparent. years when such carrying away or destruction is claimed to have taken place." 5. Pleading 367 (4) Complaint being indefinite as to damages, plaintiff should have complied with order to make more definite. In action against irrigating canal association and its members for damage to plaintiff's land by washing, where complaint was indefinite in allegations of elements of damage in that it failed to give area destroyed or its value, whether cultivated or not, or its real character as being tillable, plaintiff should have complied with trial court's order on defendants' motion to make complaint more definite and certain, and where he failed to do so, and stood on the complaint, judgment dismissing cause will be affirmed. The court granted the motion to make more definite and certain, and, the plaintiff choosing to stand on the complaint, without complying with the order of the court, the cause was ordered dismissed. The appeal is from the order dismissing the cause. [1, 2] We understand the law to be that a motion to make a pleading more definite and certain is always addressed to the sound discretion of the court. This discretion should be exercised in the interest of justice, and Generally not arbitrarily or capriciously. speaking, when an order granting or denying Appeal from Superior Court, Maricopa the motion is made, it will not be revised by County; R. C. Stanford, Judge. Action by Wright P. Shill against Cyrus Grant Jones and others. From order dismissing the cause on plaintiff's refusal to make the complaint more definite, plaintif appeals. Affirmed. W. H. Stilwell, of Phoenix, for appellant. the appellate court. Harn v. Missouri State Life Ins. Co. (Okl.) 173 Pac. 214; Sartin v. Springfield Hospital Ass'n (Mo.) 195 S. W. 1037; Bristol v. Railroad Co., 175 N. C. 509, 95 S. E. 850. [3] It is, we think, very well settled that a motion to make more definite and certain cannot be made to take the place of the general and special demurrers. Stansfield v. ROSS, J. This action was instituted by Dunne, 16 Ariz. 153, 141 Pac. 736; 31 Cyc. the appellant, herein called plaintiff, against 644, 645. It is to be employed when the the appellees, herein called defendants, for pleading is defective in some respect, but not damages. The plaintiff alleges in his com- demurrable. Our statute sets forth the plaint that he was at the time of the alleg-specific grounds for which demurrers may be ed injury, and is now, the owner of the interposed to the plaintiff's complaint. Parasoutheast quarter of the southeast quarter graph 468, Civil Code. of section 34, township 2 north, range 5 east, Gila and Salt rivers base and meridian, Maricopa county; that the defendants had constructed a dam across the Salt river for the purpose of diverting the waters thereof into a canal, constructed and maintained by defendants, running along and adjacent to his said premises. Paragraph 5 is as follows: "That the said water of said river so obstructed, diverted, and thrown to and against and along the said bank of said river by defendants as aforesaid, has during the years 1917 and 1918 crumbled, dug out, caved, carried away, and destroyed a large portion of plaintiff's said premises, to plaintiff's damage in the sum of $1,500." It also (paragraph 474) indicates quite clearly that this kind of a motion is to be employed for a specific purpose; that is, if the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be amended. The demurrers and the motion to make more definite and certain have very different functions to perform. "A petition may be so drawn that a demurrer thereto would not lie, and yet be so indefinite and uncertain as to make it unfair for the defendant to be forced to a trial thereon. In fact the filing of a motion to make more specific and certain is, in effect, a concession that a cause of action is stated in the petition; but, in effect, it challenges the injustice of such petition as to defendant. The peculiar prov Thereafter and in due course the defendants filed their motion for an order requir-ince of the trial court is to take such action ing the plaintiff to make the allegations in paragraph 5 of plaintiff's complaint more definite and certain in this, to wit: "To show in said allegations: (1) The quantity or area of land claimed by plaintiff to have been carried away and destroyed. (2) The character of the land so claimed to have been carried away and destroyed; i. e., whether said land was tillable and whether or not the same was at the time of such carrying away and destruction being cultivated to crops, and, if so, the kind and character of crops thereon. (3) The particular location, according to legal subdivision, of the lands so claimed to have been as will insure a fair and impartial trial to all litigants, whether they be plaintiffs or defendants, and hence numerous discretionary orders may be made by such court in the course of the litigation, and its discretion, when soundly exercised, will not be disturbed by this tribunal." Sartin v. Springfield Hospital Ass'n (Mo.) 195 S. W. 1037. [4] The motion is not addressed to a statement of a defective cause of action, nor a defective statement of a cause of action, but only to a statement of a cause of action so indefinite and uncertain as that the precise (190 P.) nature of the charge is not apparent. The precise nature of the charge must be made apparent by the pleading or it is amenable to this motion. The statutory requirement that the nature of the charge upon motion shall be alleged in the pleading is for the information of the adversary, so that he may prepare his defense. The motion should not be denied because the complaint states a cause of action, for it may do that and still be equivocal and uncertain in respect to the particulars or nature of the charge, and, if so, the adversary must seek an amplification of the allegations by his motion to make more definite and certain, or he will be considered as having waived the defects. It must be admitted that the elements of damage to which plaintiff might be entitled are very indefinitely and uncertainly stated, in that the complaint fails to give the area of ground destroyed or its value, whether cultivated or not, or its real character as being tillable. Its location is described generally as being along defendants' canal, but at what point, or whether the entire width of his 40 acres, is not shown. We cannot say that the defendants' information on these points is as good as plaintiff's. It might be that, if the land were more particularly described, defendants would be able more intelligently to prepare their defense. They might be able to show that it was of little or no value, or that it was in fact not the plaintiff's land. [5] In all fairness to defendants, we think plaintiff should have complied with the court's order to the best of his ability. The observance of the order would have been a very easy and simple matter, and, being so, plaintiff should have been sure of his grounds before ignoring it. In a doubtful case it would seem quick and willing acquiescence is due the respect owed by the bar to the court. The fact that we, in the same circumstances, might have overruled the motion, is not sufficient reason to reverse the ruling of the trial court. Before we should do that, it must appear that his action was arbitrary and capricious. The judgment of the lower court is affirmed. CUNNINGHAM, O. J., and BAKER, J., concur. (21 Ariz. 460) ALLAIRE v. LAUREL CANYON MINING CO. et al. (No. 1729.) (Supreme Court of Arizona. June 3, 1920.) I. Garnishment 56-When bank deposit for distribution among creditors subject to garnishment stated. Where money was placed with a bank by a debtor for distribution pro rata among credi tors, such money was subject to garnishment if the bank was holding it as the agent of the debtor, subject to orders that it could subsequently give to the bank as to the disposition of the money; but if the bank was holding the money as a trustee for the use and benefit of the creditors, who expressly or impliedly assented to such arrangement for their benefit, such creditors having a vested interest in the money in the trustee's hands, it was not subject to garnishment, under Civ. Code 1913, par. 1427 et seq. 2. Fraudulent conveyances 225 Creditor accepting payments from trustee for creditors could not garnishee. Where a creditor was notified that debtor had placed certain credits with a bank, to be collected and distributed pro rata between the creditors, and acquiesced therein to the extent of accepting dividends, he cannot assume an inconsistent position and attempt to forestall other creditors by proceeding against the bank in garnishment on a judgment in his favor subsequently obtained, even though the transaction such party impliedly becoming a party to and was designed to hinder and delay creditors; being benefited by the transaction. Appeal from Superior Court, Graham County; A. G. McAllister, Judge. Action by Thomas Allaire against the Laurel Canyon Mining Company, with the First National Bank of Globe as garnishee. From an order discharging the garnishee, plaintiff appealed. Plaintiff dying pending the appeal, Mrs. Thomas Allaire, as administratrix of his estate, was substituted as party appellant. Affirmed. Thomas Allaire commenced this proceeding of garnishment on a judgment in his favor against the Laurel Canyon Mining Company, serving the First National Bank of Globe as garnishee. The garnishee made its answer, showing that the Laurel Canyon Mining Company, judgment debtor, prior to the service of the writ of garnishment, had empowered the bank, in writing, to receive from lessees of the debtor's mines all payments of rent as they accrue on its mines to the amount of $25,000 during the five-year term of lease, ending on the 11th day of June, 1920, as the same become due, and distribute said money to all the creditors of the said defendant Laurel Canyon Mining Company pro rata; that the bank, at the time of making its answer, had in its possession for disbursement to the said creditors the sum of $2,077.14, and many thousands of dollars yet remain to be paid on rent, and, if paid, to be distributed as aforesaid; that the bank is not indebted to the defendant, and has no effects, property, or shares of stock in its possession or under its control belonging to the defendant. The plaintiff filed an affidavit controverting the answers of the garnishee, and ten For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes dered an issue in garnishment, alleging that the said agreement set forth by the bank is in violation of law and void, for the reason it was made for the purpose of hindering, delaying, and defrauding the creditors of the defendant mining company, and as a conse quence the money the garnishee bank admits in its answer to be in its possession be longs to the defendant Laurel Canyon Mining Company and is subject to the garnishment, and therefore to be applied to the plaintiff's claim. The court, after hearing oral testimony, disallowed plaintiff's contention, and decided the issue in favor of the garnishee, and discharged the bank with its costs. From the order discharging the garnishee, the plaintiff appeals. Since this appeal was filed in this court, the death of Thomas Allaire has been suggested, and the administratrix of his estate has been substituted as party appellant. E. L. Spriggs, of Safford, for appellant. nishee. CUNNINGHAM, C. J. (after stating the facts as above). The issue joined and tried involved the inquiry whether or not the money paid to the bank by Ruff and Carlson, lessees, as payment of rent on a lease for the occupation of mines belonging to the Laurel Canyon Mining Company, received by the bank and paid to the bank pursuant to instructions of the Laurel Canyon Mining Company, and held by the bank to be distributed to the creditors of the Laurel Canyon Mining Company pro rata, subjected the bank to the garnishment process as one indebted to the defendant mining company while holding such money-$2,077.14-for distribution among the creditors of the defendant mining company. [1] Of course, the question whether the money in the bank is liable to the garnishment depends upon the inquiry as to whether the bank was holding the money for the defendant as its agent or bailce or other like relation, or whether the bank was holding the money as the trustee of the creditors of the defendant mining company, over which the mining company had no control. If the garnishee bank was holding the money as the agent of the defendant mining company, subject to orders the mining company could subsequently give to the bank directing the disposition of the money, then the bank was the agent of the defendant company, and its discharge from the garnishment process was erroneous. Otherwise, if the bank was holding the money as a trustee for the use and benefit of the creditors of the defendant company, provided, of course, said creditors had expressly or impliedly assented to such arrangement for their benefit, and accepted facts appear that the trustee has been accepted by the creditors-and such facts do appear from the record-such creditors so accepting the changed conditions of payment of their claims thereafter look to the trustee for payment, and they have a vested interest in the money in the trustee's hands to the extent that the same is applicable to their respective claims. The trustee is not then the agent of the defendant debtor, but it is the agent, the trustee, of the said creditors, and owes such creditors, and not the defendant, the money in its possession. This fair principle was applied in Strayhorn v. Webb, 47 N. C. 199, 64 Am. Dec. 580, and the cases cited in notes. Under our statutes (chapter 2, title 6, R. S. A. 1913), and as recognized by the garnishment laws generally, to render a person liable to garnishment, he must have in his possession, belonging to the defendant, property, money, credit, or effects, or he must be indebted to the defendant (Smith v. Davis, 1 Wis. 447, 60 Am. Dec. 390), and the Arizona statute, supra, gives recourse to shares of stock owned by the defendant in a corporation served as garnishee. [2] The plaintiff admitted at the trial, through his attorney, that he received pro rata payment on his judgment debt from the bank, as late as the 4th day of December, 1918. The answer of the garnishee was filed in this matter on the 19th day of October, 1918. There are some, although not very satisfactory, statements in the record tending to show that the plaintiff received a dividend payment from the bank prior to December 4, 1918. The fact clearly appears from the record that the plaintiff, Thomas Allaire, was notified of this transaction of the mining company and the bank, and that he acquiesced in the transaction to the extent of accepting a portion of the benefits provided for him by the transaction after, if not before, he commenced this proceeding. It would be assuming inconsistent positions for the plaintiff to accept dividends under the transaction for a time, and then change his mind and attempt to forestall other creditors similarly situated from receiving their dividends and appropriate an entire fund to the payment of his claim to the exclusion of the other creditors, as well as to the hindering and delaying of the other creditors. Hence, conceding that the transaction was designed to hinder and delay creditors, and for that reason the transaction was liable to be annulled at the suit of a creditor thereby injured, yet neither the plaintiff nor other creditors who accepted a dividend, or other benefits, knowing the same was offered and paid pursuant to the said transaction, can be heard to complain that he has been hindered, delayed, or defrauded by that particular agreement, for the reason (190 P.) party to and is benefited by such transaction. We find no error in the record. The order appealed from is therefore affirmed. ROSS and BAKER, JJ., concur. (21 Ariz. 490) David Benshimol, of Douglas, for appellants Stolaroff. Boyle & Pickett, of Douglas, for appellant Bank of Douglas. Manatt & Stephenson and McFarland & Sames, all of Douglas, for appellee. BAKER, J. The plaintiff, Bassett Lumber Company, sought to establish a mechanic's STOLAROFF et al. v. BASSETT LUMBER lien against the property of the defendant CO. (No. 1804.) Frank Stolaroff, to the amount of $1,326.40, for lumber and other materials sold at that (Supreme Court of Arizona. June 3, 1920.) | sum to the defendant M. Morris, who, un I. Mechanics' liens 239-No implied notice to materialman of source of money credited to contractor's account other than intended by owner. Where landowner would not trust contractor and made check out to third person to pay materialmen, and such third person went to a materialman with the contractor and indorsed and presented such check, and both directed that it be applied on the account of the contractor for materials furnished an another job, the fact that the check was made by the owner furnished no reasonable or natural clue to the materialman that the third person had received the check in a fiduciary capacity or as agent or trustee of the property owner, and that he was about to misappropriate the funds; such third person having been in the habit of aiding the contractor financially in the conduct of his business. 2. Mechanics' liens 239-Notice of source of money paid on account of contractor too late to affect liability of owner, where payment was not applied as owner intended. Where owner did not trust contractor, and made check to a third person to pay accounts of materialmen, and such third person and contractor gave the check to a materialman, and directed him to apply it upon the account of the contractor for material furnished upon a different job, and the materialman discharged such other account on its books and gave the contractor a receipt, a notice 30 minutes thereafter that the third person misapplied the check was too late to affect the equity of the materialman. 3. Mechanics' liens 239 Materialman applying payment from contractor to certain account, must have notice of equity in landowner. In order to deprive a materialman of the right to apply a payment made by a contractor to an account directed by the contractor, it must know that it is receiving money of a certain owner, or the facts must be sufficient to put it on notice of some equity in such owner. Appeal from Superior Court, Cochise County; Alfred C. Lockwood, Judge. Proceeding by the Bassett Lumber Company against Frank Stolaroff and others. Judgment for plaintiff, and the named defendant and others appeal. Affirmed. der a contract with Stolaroff, used the lumber and materials in constructing a dwelling house for Stolaroff on the property against which the lien is sought to be established. Stolaroff pleaded payment in full of the plaintiff's claim. Notice of the lien was duly filed and served. The case was tried before a jury, and after the close of all of the evidence the judge instructed the jury to return a verdict for the plaintiff in the amount claimed, which was done, and thereupon judgment was rendered in favor of the plaintiff for the said sum of $1,326.40, against the defendant M. Morris, which amount was declared to be a lien on the Stolaroff property, and superior to a mortgage held by the defendant, the Bank of Douglas, on the property. The defendant M. Morris did not appeal. Frank Stolaroff, Lillie Stolaroff, and the Bank of Douglas are the only parties appealing. The action of the trial judge in directing a verdict is the only assignment of error possessing any merit. It is urged that the directed verdict was unauthorized by the evidence. The undisputed facts show the following case: Morris, as contractor, was employed by Stolaroff to put up a dwelling house for him on lots 31 and 32, block 22, of the Clauson addition in the city of Douglas, for the contract price of $3,300. The lumber and materials used in the construction of the building under the contract was bought by Morris from the Bassett Lumber Company. Stolaroff knew that Morris had not paid for the lumber and materials, and he promised Bassett Lumber Company that he would see that its account was paid. Morris, at the time he was performing the Stolaroff contract, was indebted to Bassett Lumber Company for lumber and materials which he had purchased and used in another building constructed by him for another party. This account was known as the Itule account, and was in the sum of $1,800. Stolaroff lacked confidence in the integrity of Morris to pay the Bassett Lumber Company's claim if he should intrust him with the money for that purpose, and after some discussion of the matter with Morris, Stolaroff decided to give the money to one Jake Kerner and trust him For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to make the payment. In pursuance of this there is any evidence in the record tending determination, Stolaroff gave Kerner a check to support this claim. There was nothing in on the Bank of Douglas for the sum of $1,- the transaction to put the Bassett Lumber 688, and instructed him to pay the Bassett Company on notice, either actual or conLumber Company's claim, and another claim structive, that the check should be applied to held by the Brophy Carriage Company, out the payment of the first-mentioned account. of the check. The check was made payable Had the check been made payable to Morris, to Kerner direct, who, in company with and by him indorsed to the Bassett Lumber Morris, took it to the agent of the Bassett Company, some contention might be made Lumber Company. Kerner indorsed the that it conveyed notice to the Bassett Lumber check and handed it to the agent. Kerner Company of the source of the money, and and Morris jointly instructed the agent to that it should be credited to the Morris acplace the amount of the check to the credit count for lumber and materials used in the of the Itule account, Morris furnishing Stolaroff building, and not to the Itule acsome $200 in cash so that this account could count. Flexner Univ. School v. Strassel Gans be paid in full. The agent, acting under the Paint Co. (Ky.) 112 S. W. 686; Peterson v. instructions of Morris and Kerner as to Shain, 4 Cal. Unrep. 122, 33 Pac. 1086; the application of the funds, placed the check Bowles Co. v. Clark, 59 Wash. 336, 109 Pac. to the credit of the Itule account, and dis- 812, 31 L. R. A. (N. S.) 613. Especially charged the account on the books of the com- would this be true had the check borne any pany, delivering Morris a receipt in full. In distinguishing words, such as "on contract" this transaction nothing was said about the or "trustee" or "agent." 8 Corp. Jur. 515; account which Morris owed for the lumber Hughes & Co. v. Flint, 61 Wash. 460, 112 and materials used in the Stolaroff build- Pac. 633. But the check was made payable ing, and no mention was made of the circum- to Kerner or bearer, and was for a larger stances under which Kerner obtained pos- amount than the Morris account for lumber session of the check. In a short while after and materials used in the Stolaroff building. the completion of this transaction, say with- It bore no words or signs importing any in 30 minutes, and upon inquiry by the agent equity in the drawer so as to exempt it from as to when the Morris account for lumber the provisions of the Negotiable Instrument and materials used in the Stolaroff building | Law (Civ. Code 1913, pars. 4146-4339). Baswould be paid, Kerner exhibited to the agent sett Lumber Company might reasonably have a copy of a written agreement which he had assumed that Kerner was the absolute owner with Stolaroff in reference to the payment of the check, and that he had received it in of the claims against the Stolaroff property. the ordinary course of business. The fact This agreement had been entered into be- that the check was made by Stolaroff, and tweer Stolaroff and Kerner at the time Stol- represented funds which belonged to him aroff gave Kerner the check. The instru- when the check was made furnished no reament was lost at the time of the trial, and sonable or natural clue to the Bassett Lumber the parol evidence as to its terms or con- Company that Kerner had received the check tents was conflicting. The defendant's testi- in a fiduciary capacity, or as agent or trustee mony, however, tended to show that it was of Stolaroff, and that he was about to misapa guaranty on the part of Kerner that he propriate the funds in the payment of the would pay the claim of the Bassett Lumber Itule account. Company out of the specific check which Stol- Stolaroff promised to pay the Morris acaroff had given him. It further appears count for lumber and materials used in his from the uncontradicted testimony that Ker-building, but it was perfectly reasonable for ner had been furnishing Morris with money to carry on his contracting business, and that fact was known to the Bassett Lumber Company. In fact, Morris had informed the company some time prior to the transaction in question that he was going to borrow the money from Kerner to pay the Itule account. [1] It is insisted that under this evidence Bassett Lumber Company, in equity and good conscience, should have placed a sufficient amount of the check to the credit of the account for lumber and materials sold to Morris and used in the Stolaroff building to have satisfied it, and not to have placed the check to the credit of the Itule account. It is insisted that the transaction should be treated equitably as payment of the first the Bassett Lumber Company to assume that Stolaroff would fulfill his promise in a usual business method by making the payment in cash or by sending a check for the amount payable to the company. The company was not called upon to suppose for a moment that Stolaroff intended to pay the account by sending a check payable to Kerner in a greater amount than such account. We see nothing suspicious, at least nothing sufficient to put the Bassett Lumber Company upon inquiry, in the circumstances that Kerner and Morris were together and both took part in directing the application of the funds represented by the check to the payment of the Itule account. The Bassett Lumber Company might reasonably have inferred that Kerner was advancing money to enable |