Aritex Land Co. v. Arnold
| Decision Date | 17 March 1972 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 494 P.2d 747,16 Ariz.App. 547 |
| Parties | ARITEX LAND COMPANY, Inc., an Arizona Corporation, Appellant, v. Vivian ARNOLD, Appellee. 977. |
| Court | Arizona Court of Appeals |
Silverstone & Stern by Maurice M. Stern, Tucson, for appellant.
Waterfall, Economidis & Caldwell, P.C. by Walter B. Nash III, and Hugh M. Caldwell, Jr., Tucson, for appellee.
Plaintiff-appellee, Vivian Arnold, initiated this action in the Superior Court of Pima County to recover a broker's fee on the sale of defendant's property in Texas. Defendant-appellant, Aritex, an Arizona corporation, counterclaimed for return of the portion of the broker's fee that had been paid to plaintiff, allging fraud and illegal contract because plaintiff and her agents were not licensed real estate brokers or salesmen in Texas.
On 7 December 1970, the court entered a written judgment in favor of the plaintiff in the amount of $40,637.50, plus interest and attorneys' fees. Defendant here appeals this judgment.
Defendant, Aritex Land Co., Inc., owned a large ranch in Texas which it desired to sell. Plaintiff, Vivian Arnold, through her agents, searched for and found a purchaser for the ranch. Plaintiff's agents took Mary West, the prospective purchaser, to Texas to look at the ranch. There they received an oral agreement from Irving Baker, the president of Aritex, for a listing of the property. Mary West was shown the ranch and after returning to Tucson with plaintiff's agent, submitted offers to purchase the ranch. Irving Baker came to Tucson to sign a Deposit Receipt and Agreement and a Commission Agreement. The sale was ultimately closed to everyone's satisfaction and plaintiff was paid the first $20,000 of the commission as per the Commission Agreement.
Appellant raises two questions on appeal:
1. Was it error for the trial court to find that there was no fraud by the plaintiff or her agents in procuring the agreement?
2. Should the contract have been determined to be void and unenforceable because plaintiff and her agents were not licensed as real estate brokers or salesmen in Texas?
The judgment of the trial court included the following findings and conclusions:
'1. That neither the plaintiff nor her agents were guilty of fraud in procuring the employment agreement concerning the sale of the Texas property;
2. That the plaintiff, through her agents, found the purchaser in Arizona and took her to Texas, where for the first time plaintiff's agents asked Irving Baker, agent of defendant, for a listing of the property, and introduced the purchaser to Irving Baker, who werbally agreed that plaintiff should handle the proposed sale of the property to the purchaser; that thereupon, Irving Baker showed the property to the purchaser;
3. That on January 14, 1967, the purchaser, Mary West, at Tucson, Arizona, offered $975,000.00 for the ranch which offer was not accepted by the defendant but thereafter, the purchaser, Mary West, made an offer of $1,212,750.00, which offer was made in Tucson, Arizona and accepted by the defendant in Tucson, Arizona on January 16, 1967.'
This court on appeal is bound by the trial court's findings unless they are Clearly erroneous. Douglas v. Vancouver Plywood Co., 16 Ariz.App. 364, 493 P.2d 531 (filed February 3, 1972); Dietel v. Day, 16 Ariz.App. 206, 492 P.2d 455 (1972); Zellerbach Paper Co. v. Valley National Bank, 13 Ariz.App. 431, 477 P.2d 550 (1970). We have reviewed the entire record before us and conclude that the trial court's finding that there was no fraud is Not clearly erroneous.
Both parties and this court agree that James v. Hiller, 85 Ariz. 40, 330 P.2d 999 (1958) is a correct statement of the law and we believe it to be analogous to the case Sub judice.
The facts in James were as follows. Plaintiff was a real estate broker in New Mexico and was licensed there but not in Arizona. In Tucson, an oral agreement was made for plaintiff to sell defendant's Tucson property. Thereafter, in New Mexico defendant executed a written listing agreement for plaintiff to sell the Tucson property. Plaintiff found a buyer in New Mexico and a written contract for the sale was entered into in New Mexico. Plaintiff there brought an action to recover the portion of the commission which defendant refused to pay, alleging that plaintiff should not recover because plaintiff was not licensed as a broker in Arizona.
The Arizona Supreme Court there reasoned that:
'The general rule is that a brokerage contract is a contract of employment for personal services and its validity is determined by the law of the state where made unless it appears from the contract that it is to be performed elsewhere, in which event the law of the state where it is to be performed governs irrespective of the location of the property involved. Tillman v. Gibson, 44 Ga.App. 440, 161 S.E. 630; 11 Am.Jur., Conflict of Laws, section 167, page 474; Annotation 159 A.L.R. 266. It is likewise the rule that brokerage contracts such as in the instant case are unilateral and the place of contracting is where the last act necessary to make it binding occurs, which is the place...
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Coldwell Banker & Co. v. Karlock
...an interest in land. See, e.g., Richland Development Co. v. Staples, 295 F.2d 122, 125 (5th Cir. 1961); Aritex Land Co. v. Arnold, 16 Ariz.App. 547, 494 P.2d 747, 748 (1972); In re Stoddard's Estate, 60 Wash.2d 263, 373 P.2d 116, 118 (1962); Annot., 159 A.L.R. 266, 267 (1945). As such it mu......