Clifford v. White

• Decision Date: 23 October 1939
• Docket Number: Civil 3986
• Parties: NELLIE C. CLIFFORD and JOHN Q. CLIFFORD, Wife and Husband, Appellants, v. MARTHA R. WHITE, Appellee
• Court: Arizona Supreme Court

94 P.2d 875

54 Ariz. 252

NELLIE C. CLIFFORD and JOHN Q. CLIFFORD, Wife and Husband, Appellants, v. MARTHA R. WHITE, Appellee

Civil No. 3986

Supreme Court of Arizona

October 23, 1939

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. D V. Mulhern, Mr. B. H. Gibbs and Fennemore, Craig, Allen &amp Bledsoe, for Appellants.

Mr Henderson Stockton and Mr. Eli Gorodesky and Messrs. Wilson &amp Watson, of Santa Fe, New Mexico, for Appellee.

OPINION

McALISTER, J.

This is an action by Nellie C. Clifford and John Q. Clifford to recover from Martha R. White damages for an alleged breach of a contract by which, they aver, they agreed to sell and she to purchase certain property located in Pinal county, Arizona, for a consideration of $8,000. Judgment in favor of the defendant was rendered after a demurrer to the amended complaint (hereafter referred to as the complaint) had been sustained upon the ground that it did not state a cause of action and the right to amend denied because the defect could not in the opinion of the trial court be cured. Thereupon the plaintiffs brought the matter here for review.

In this situation the correctness of the judgment necessarily depends on whether the ruling upholding the demurrer was proper, and to determine this the facts set up in the complaint must appear. That pleading alleges in substance that on April 14, 1932, at Phoenix, Arizona, the plaintiffs, Nellie C. Clifford and John Q. Clifford, wife and husband, entered into an agreement in writing with the defendant, Martha R. White, whereby the plaintiffs agreed to sell and the defendant to buy for a consideration of $8,000 United States desert land entry, Phoenix, Arizona, serial No. 060553, made and held by plaintiff, Nellie C. Clifford, covering all of the W 1/2 of Section 28, Tp. 5 S., Range 7 E., G. & S.R.B. & M., located in Pinal county, Arizona; that by the further terms of the contract the parties agreed as follows: that the defendant would deposit that day $500 of the purchase price with the Phoenix Title & Trust Company, a corporation, transacting business in Phoenix, Arizona; that the plaintiffs would deposit with the same company a quitclaim deed executed by the plaintiff, Nellie C. Clifford, conveying to the defendant the desert land entry, and also obtain from the United States General Land Office a three-year extension of time in which final proof might be made upon the desert land entry; that the defendant would deposit with the Phoenix Title & Trust Company the balance of the purchase price, $7,500, on or before the expiration of thirty days from the time the quitclaim deed should be deposited by plaintiffs with the Phoenix Title & Trust Company; that the $8,000 should be paid by the Phoenix Title & Trust Company to the order of Nellie C. Clifford upon the acceptance by the United States General Land Office of the quitclaim deed as a complete transfer of the desert land entry to Martha R. White.

It is alleged further that pursuant to this agreement, Martha R. White deposited $500 with the Phoenix Title & Trust Company on April 14, 1932, and that the plaintiffs on the same day deposited with that company the quitclaim deed from Nellie C. Clifford to Martha R. White, and also obtained from the United States General Land Office an extension for three years of the time in which final proof on the entry could be submitted; that the quitclaim deed has at tall times since April 14, 1932, been in the possession of the Phoenix Title & Trust Company to be by it delivered to Martha R. White upon the deposit by her with that company of the balance of the purchase price.

Plaintiffs aver further that they have done everything they agreed to do to complete the agreement and sale, but that the defendant, Martha R. White, has wholly failed, neglected and refused to deposit the remainder of the purchase price, $7,500, or any part thereof, with the Phoenix Title & Trust Company, though thirty days from April 14, 1932, has long since gone by, and that her failure in this respect prevented the acceptance by the United States General Land Office of the quitclaim deed as a complete transfer of title from Nellie C. Cifford to Martha R. White of the desert land entry, serial No. 060553, and made it impossible to consummate the sale thereof in accordance with the terms of her agreement; that instead of living up to her contract to purchase, the defendant expressly repudiated it on or about July 1, 1932.

The last paragraph sets up the different items of damage alleged to have been suffered by plaintiffs as a result of the defendant's refusal to perform her agreement.

To this complaint the defendant filed a demurrer, a plea in bar and an answer. The demurrer is based upon twelve grounds, the first being general and each of the other eleven special. The general demurrer was sustained, so a consideration of any of the grounds urged in the special demurrer becomes unnecessary.

The plea in bar was based upon the judgment of this court in cause No. 3455, White v. Clifford, 45 Ariz. 120, 40 P.2d 749, rendered in January, 1935, in disposing of the appeal in case No. 37610 of the superior court of Maricopa county, an action instituted in July, 1932, by the plaintiffs in this proceeding, Nellie C. Clifford and her husband, John Q. Clifford, against the same defendant, Martha R. White, to recover the purchase price of desert land entry No. 060553. The court did not, however, consider this plea in bar but in ruling on the demurrer did what for practical purposes amounted to the same thing, namely, took judicial notice of the proceedings in the former action and weighed the allegations of the complaint not merely in their own light but as they were affected by the record and holding in that case. In testing the sufficiency of the complaint that way the court relied on Stewart v. Phoenix National Bank, 49 Ariz. 34, 64 P.2d 101, but whether, after taking this action, it reached the correct conclusion cannot be determined without knowledge of the facts judicially noticed and of the construction placed upon them by this court. The former opinion states the facts in the following language [45 Ariz. 120, 40 P.2d 750]:

"In February or March, 1932, plaintiff, Nellie Clifford was the owner of desert land entry No. 060553 hereinafter called the entry, which, while a valid and existing desert land entry, had not been perfected so as to entitle her to patent, and the time allowed under the law to perform the acts necessary to secure a patent was approaching expiration.

"Defendant was a wealthy woman whose legal residence was and had been in the state of New York, though she was in the habit of spending part of her time in New Mexico, and occasionally visited Arizona, but was never a resident of the latter state. She and one R.C. Woodruff were jointly interested in a stock farm located near plaintiff's entry. For reasons which it is not necessary to discuss, she decided that she would like to secure the land covered by the Clifford entry if it could be obtained on suitable terms, and verbally authorized Woodruff to enter into negotiations for such purchase with the owner, who was then unknown to her. Woodruff at the time was in New Mexico, and communicated with Captain James M. Palmer in Phoenix, asking him to get in touch with the owners of the land and find out on what terms they would dispose of it. After a number of telegrams, letters, and telephonic conversations between defendant, Woodruff, Palmer and the Cliffords, the general effect of which were known by both plaintiff and defendant, the latter verbally authorized the closing of the deal, and on March 26th signed and swore to an application for a desert land entry covering the land embraced in plaintiff's entry, in the form required by the government for such entries in which she stated that she was a resident of Coolidge, Arizona. This last statement was not a fact, but was made by her in good faith, because she had been informed and believed that her ownership of land in Arizona qualified her to make it. Plaintiff also was informed and believed that defendant had the necessary residence to take title under the Desert Land Act (43 U.S.C.A., §§ 321-323). Apparently at that time it was the intention of the parties to make the transfer by means of a relinquishment by plaintiff and a new entry by defendant, but this idea was obviously abandoned in favor of handling the deal by an assignment of plaintiff's entry to defendant, for this instrument was never used by defendant in an attempt to make entry on the land in question, and on April 14th a certain written escrow agreement was executed by Palmer, signing as agent for defendant, and was accepted by plaintiff Nellie Clifford, through her attorney, which clearly provides for transfer by assignment. This escrow reads as follows:

"'Escrow Instructions. Escrow No. 22767.

"'JJB Order No. --.

"'Phoenix, Arizona, April 14, 1932.

"'Phoenix Title and Trust Company:

"'I hand you herewith the sum of $500.00, and will hand you the further sum of $7500.00 on or before the expiration of 30 days from the date of the deposit with you of the quit-claim deed hereinafter provided for, all of which sum of $8,000.00 you may pay to the order of Nellie C. Clifford, upon the compliance with the following:

"'At such time as you have a quit-claim deed executed by Nellie C. Clifford, and conveying Cartha R. White the W 1/2 of Section 28, Tp. 5 S., Range 7 E, of the G. & S.R.B. & M., in Pinal County, Arizona;

"'An extension from the United States General Land Office to Nellie C. Clifford extending the time for 3 years within which time final proof may be filed on Desert-Land Entry No. 060553 "F" M.D.H.;

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