Eason v. Heighton

• Decision Date: 15 March 1937
• Docket Number: Civil 3723
• Parties: M. W. EASON, Appellant, v. H. E. HEIGHTON, Appellee
• Court: Arizona Supreme Court

65 P.2d 1373

49 Ariz. 237

M. W. EASON, Appellant, v. H. E. HEIGHTON, Appellee

Civil No. 3723

Supreme Court of Arizona

March 15, 1937

APPEAL from a judgment of the superior court of the county of Pima. William G. Hall, Judge. Judgment vacated and set aside and cause remanded with directions.

Messrs Duffy & Robins, for Appellant.

Messrs Conner & Jones, for Appellee.

OPINION

ROSS, J.

In 1932 M. W. Eason, of Jenkintown, Pennsylvania, plaintiff, owned a ranch property and some live stock in Santa Cruz county Arizona, which he listed with H. E. Heighton, defendant, a licensed realtor, of Tucson, Arizona, for sale. In October of that year defendant, Heighton, received from one W. W Hodgman, Jr., whom he had contacted as a purchaser or prospective purchaser of said property, $500 as part payment of the purchase price, as he contends, but, as contended by plaintiff, Eason, as an advance on an option to buy said property. Later on Hodgman paid $500 more on the same terms and conditions. Hodgman, upon the payment of the first $500, went into possession of the property and made considerable improvements thereon but, not being able to raise the money to pay the balance of $7,000, agreed to be paid, he surrendered the property back to defendant as the agent of the plaintiff and abandoned all claim to the return of the $1,000.

The parties not being able to agree on the commission defendant should receive for his servises, this action was commenced by plaintiff for the $1,000 and interest at 6 per cent. as for money had and received by defendant for the account of plaintiff. The issue, then, at the trial was whether the transaction with Hodgman was a contract of sale or an option. If Hodgman was a purchaser of the property, the defendant, who secured him as such, would be entitled to his full commissions which it is agreed would be 10 per cent. of the purchase price of $8,000; but, if only an optionee, he would, if compensable at all, receive a very different sum.

The court found as a fact that the defendant procured Hodgman to execute the following instrument, to wit:

"H. E. Heighton, Realtor

"Real Estate -- Insurance -- Rentals -- Loans

"31 So. Scott St. Phone 265.

"$500.00

Tucson, Arizona,

"October 25, 1932.

"Received of W. W. Hodgman, Jr., purchaser, the sum of five hundred & no/100 dollars ($ ) as part of purchase price on the following described property:

"The M. W. Eason Ranch also known as the Sunset Pass Ranch, being a part of Sections 8, 9, and 17 in Township 22 South, Range 18 East, containing 231 acres more or less; together with all livestock and ranch equipment belonging to M. W. Eason which for account of and as agent for the owner, the undersigned has this day sold to the above named purchaser, subject to acceptance of the owner and merchantable title, at the price and under the terms and conditions herein set forth. Conveyance shall be subject to any reservations or exceptions contained in State or Federal patents, to any race or building restrictions of record, and to existing Zoning Ordinance of the City of Tucson.

"Price shall be Eight Thousand and no/100 Dollars ($8,000.00).

"Terms shall be as follows: $8,000.00 cash, on closing sale (which includes above deposit).

"All taxes, insurance premiums, interest on assessments, all mortgage interest, rentals and water rents shall be pro rated as of date of closing sale. Purchaser shall assume balance payable on all assessments as same now exist None.

"H. E. HEIGHTON, Realtor.

"By [Signed] H. E. HEIGHTON.

"The undersigned purchaser hereby agrees to purchase the above described property at the price and under the terms and conditions hereinabove set forth. You are hereby given day to obtain the owner's acceptance of this sale. If owner's acceptance is obtained within said period, then this instrument will become a binding obligation on the purchaser's part. After delivery of abstract to purchaser 10 days shall be allowed for examination and closing sale.

"[Signed] WM. W. HODGMAN, Jr.

" , 193 .

"I or We hereby agree to sell the above described property to the above named purchaser or his assigns at the price and under the terms and conditions hereinabove set forth, to furnish at our expense a complete abstract of title and showing merchantable title thereto and to pay the regular commission as provided by the Real Estate Board of Tucson, and sale expenses.

".

".

"Accepted by telegram.

"(Form adopted by the Real Estate Board of Tucson)."

The court also found that before said contract was executed defendant wired plaintiff, at the latter's home in Pennsylvania, as follows:

"Showed ranch this afternoon No furniture and little or no equipment in evidence Have offer of Eight Thousand cash subject to real estate board commission Deposit on acceptance Wire answer Sale subject to merchantable or insurable title. H. E. Heighton for W. W. Hodgman, Jr.," and that plaintiff answered such telegram "Close deal."

From the findings the court concluded that the transaction was a sale of the property and not an option; that the defendant had authority from the plaintiff to make the contract and, having fully performed his contract was entitled to 10 per cent. of the sale price, or $800, and to be reimbursed for expenditures for an abstract of title and the opinion of an attorney thereon in the sum of $55; and gave judgment to plaintiff for $200, less $55. Plaintiff has appealed.

The assignments are that the court erred (1) in not giving plaintiff judgment for the $1,000 with interest, less $55 expenses for abstract of title and attorney's fee, for the reason the contract was intended by the parties to be an option only and defendant was not entitled to any commissions unless a sale was effected; and (2) in not giving plaintiff judgment for one-half of the $1,000, after deducting $55 expenses as above, it being the prevailing local custom, in the absence of agreement between the property owner and broker, to divide equally forfeited payments on sales.

To consider these assignments, we would have to overlook or disregard the court's findings of fact as they are predicated upon evidence entirely different from that supporting the findings by the court. We think under our rules and decisions, when the trial court makes written findings of fact and conclusions of law separately, as provided in section 3819, Revised Code of 1928, we should treat such findings of fact as supported by the evidence until in the proper manner it is made to appear otherwise. The plaintiff requested the court to make findings of fact and submitted to the court findings for its consideration in accordance with his contention that the contract was only an option. It seems to us that, if it be true that the court's findings are not supported by the evidence, an assignment to that effect should have been made; but none has been made, nor is it assigned that the court erred in not adopting plaintiff's set of findings. We have frequently decided that the court's findings of fact will be accepted as sustained by the evidence in the absence of assignment challenging such findings. In Tennery v. Tennery, 35 Ariz. 69, 274 P. 638, we said:

"The next assignment is directed at the sufficiency of the evidence to support the decree. On that issue the court made a finding to the effect that each and every allegation of cruelty of the wife's cross-complaint was true. This finding is not assigned as erroneous or unjustified by the evidence. The rule is that, where the court makes findings of fact, we will not look into the evidence for the purpose of determining its sufficiency upon an assignment that ignores the findings but challenges generally the sufficiency of the evidence. Where there are findings, we will accept them as being fully supported by the evidence, unless they are challenged by proper assignment. Joslin v. Stewart, 28 Ariz. 585, 238 P. 390; Mosher v. Sabra 273 P. 534."

In Mosher v. Sabra, 34 Ariz. 536, 273 P. 534, we said:

"The case was tried to the court without a jury, and upon findings of fact and conclusions of law judgment was entered against both defendants for the balance...