629 F2d 571 Biddle v. Mountain States Telephone and Telegraph Company

629 F.2d 571

James B. BIDDLE and wife, Jo Ann Biddle; Vernon R. Shetler
and wife, Rickey Shetler, Appellants,
v.
The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a
corporation authorized to do business in the State
of Arizona, Appellee.

No. 78-2128.

United States Court of Appeals,
Ninth Circuit.

July 14, 1980.

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1

Brooks T. Hozier, Guttilla & Hozier, P. C., Phoenix, Ariz., for appellants.

2

George T. Cole, Phoenix, Ariz., argued, Nancy L. Rowen, Atty., Phoenix, Ariz., on brief, for appellee.

3

Appeal from the United States District Court for the District of Arizona.

4

Before KENNEDY and NELSON, Circuit Judges, and STEPHENS,* District Judge.

5

STEPHENS, Senior District Judge.

6

Plaintiffs, James B. Biddle, Jo Ann Biddle, Vernon R. Shetler and Rickey Shetler, appeal from the entry of summary judgment in favor of defendant, The Mountain States Telephone and Telegraph Company (Mountain Bell), in this breach of contract action.

7

Summary judgment was granted on grounds that the action was barred by A.R.S. § 12-543, which provides a three year statute of limitations for debt evidenced by an oral contract. This action was filed three years and ten months after the cause of action arose.

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8

Plaintiffs contend that A.R.S. § 12-548, which provides a six year statute of limitations for debts evidenced by a written contract, is applicable. It is conceded, however, that the written tariffs on file with the Arizona Corporations Commission form only a part of the contract for telephone services. The contract between the parties did not arise until oral requests for telephone services were made and Mountain Bell orally agreed to supply them.

9

It is axiomatic that a contract which is partly oral and partly written is an oral contract. Beane v. Tucson Medical Center, 13 Ariz.App. 436, 477 P.2d 555 (1970); Annot., 3 A.L.R.2d 809 §§ 5, 6 (1949). Therefore, the three-year statute of limitations applies in this case and the action is barred.

10

AFFIRMED.

*

The Honorable Albert Lee Stephens, Jr., Senior United States District Judge for the Central District of California, sitting by designation