Cress v. Switzer, Civil 4570

• Decision Date: 26 June 1944
• Docket Number: Civil 4570
• Citation: 150 P.2d 86,61 Ariz. 405
• Parties: L. W. CRESS, Doing Business as CRESS BROTHERS, Appellant, v. JEAN N. SWITZER and SADYE BEARD, Appellees
• Court: Arizona Supreme Court

150 P.2d 86

61 Ariz. 405

L. W. CRESS, Doing Business as CRESS BROTHERS, Appellant, v. JEAN N. SWITZER and SADYE BEARD, Appellees

Civil No. 4570

Supreme Court of Arizona

June 26, 1944

APPEAL from a judgment of the Superior Court of the County of Coconino. H. K. Mangum, Judge. Reversed and remanded.

Mr. H C. McQuatters, for Appellant.

Messrs Wilson, Compton and Wilson, for Appellees.

OPINION

STANFORD, J.

In the Superior Court of Coconino County the appellees filed their action asking judgment for the possession of Lot 16, Block 4 of the City of Flagstaff, as surveyed and platted by H. C Nutt, trustee for the Atlantic and Pacific Railroad Company, together with the improvements thereon. The complaint alleged that appellant prior to June 30, 1942, was in possession of the property as a tenant of appellees, the owners, by a month to month lease. Notice of termination of the month to month lease and the demand to surrender possession was given appellant June 12, 1942.

In answering, the appellant admitted ownership in the appellee, but denied the right of possession, and alleged that improvements of approximately $700 value had been expended by him in the way of certain installations and alterations on the premises, besides the installation of counters, equipment and fixtures to conform to the building, and the same were made because of the terms and provisions of a verbal agreement entered into between the parties substantially as follows:

"Plaintiffs agreed to let said premises to defendant for a term of five (5) years, commencing August 1, 1938, ending July 31, 1943, granting defendant the option to renew said lease for an additional period of five (5) years. Defendant in consideration of the letting of said premises agreed to pay to plaintiffs the sum of sixty dollars ($60.00) per month, as rental therefor, and to abide by all the usual covenants, obligations, and duties usually incorporated in a lease of similar business property in the City of Flagstaff."

That the installations and alterations performed by the appellant were in reliance on the verbal agreement and in reliance on the promises of appellees that the agreement would be reduced to writing at an early date, which promises were repeated many times.

By reply to the answer of appellant, appellees pleaded Section 58-101, Arizona Code Annotated 1939, Statute of Frauds.

"No action shall be brought in any court in the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the parties to be charged therewith, or by some person by him thereunto lawfully authorized:

"6. Upon an agreement for the leasing for a longer period than one (1) year,...."

Also appellees, at the same time, filed a motion for summary judgment on the pleadings based on our code, and it is from the granting of that motion that appeal is taken.

The appellant submitted the two following assignments of error:

"No. I. The Court erred in granting plaintiff's Motion for Summary Judgment and ordering that a Writ of Restitution for the possession of the premises issue, for the reason that the record in the case affirmatively shows that there was a genuine issue of material fact raised by the respective pleadings.

"No. II. The Court erred in granting plaintiffs' Motion for Summary Judgment for the reason that the answer and the affirmative defense of defendant was a legal defense, if established, to the plaintiffs' complaint, whereas the Court's granting of the motion conclusively shows that the Court must have held that no legal defense was presented."

The main question for us to determine is, can the defense of equitable estoppel be asserted notwithstanding provisions of the statute of frauds? Appellant submits that Rule 56, or Sec. 21-1210, Arizona Code Annotated 1939, being the Rules of Civil Procedure of the Superior Courts, follows the rule of Federal Rules and Civil Procedure and cites many decisions of the federal courts interpreting said rules.

In reference to a motion for summary judgment the appellant quotes various federal cases, among them being Whiteman v. Federal Life Ins. Co., D.C., 1 F.R.D. 95, 96, and from that case we quote the following:

"This is the first motion of its kind that has been presented to me as a judge of this court. I had, of course, given some study, I must admit it has been slight study, to Rule 56, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, under which the motion is presented. I think such a motion should be sustained only in a very clear case, a case in which there is no doubt as to how some essential question should be resolved, such an essential question as that when it is resolved adversely to one of the parties, that party cannot prevail."

Phoenix Hardware Co. v.Paragon Paint & Hardware Corp., D.C., 1 F.R.D. 116, 117:

"The defendant, by its denial of the allegations in paragraphs 8 to 11 of the complaint, both inclusive, and in paragraphs 22 to 26 of the complaint, both inclusive, has raised an issue and therefore the plaintiff is not entitled to an order striking out the defendant's answer herein, granting summary judgment, or granting judgment on the pleadings, or striking out defendant's answer here as sham and frivolous."

Dairy Engineering Corp. v. DeRaef Corp., D.C., 1 F.R.D. 679:

"An examination of the authorities shows that this principle is not limited to law cases. A summary judgment should never be given until the facts are clear and undisputed. If there is a controversy on a factual question, judgment should be withheld until proof has been made."

In respect to the right to possession of real estate being determined by equitable estoppel regardless of the statute of fraud requiring a memorandum in writing, from 19 Am. Jur. 743, we quote the following:

"Occasionally the question is raised as to whether the title to real property can be passed by means of an estoppel in pais, since there is no writing made by the person sought to be estopped in such cases and the statute of frauds requires some memorandum in writing in connection with the transfer of title of real property. The majority rule is to the effect that to permit the transfer of title by operation of equitable...