Gallaway v. Smith, 5128
Citation | 70 Ariz. 364,220 P.2d 857 |
Decision Date | 15 July 1950 |
Docket Number | No. 5128,5128 |
Parties | GALLAWAY v. SMITH et al. |
Court | Supreme Court of Arizona |
Jennings, Strouss, Salmon & Trask, of Phoenix, attorneys for appellant.
Renz L. Jennings, Carl Tenney, of Phoenix, attorneys for appellees Thelma Sweat and Otto Sweat.
Darrell R. Parker, of Phoenix, attorney for appellees John F. Smith and Kenneth W. Franklin.
The sole question presented by this appeal is whether the trial court erred in directing verdicts for the defendants and in entering judgment against plaintiff in accordance with the verdicts.
Appellant-plaintiff, Grace M. Gallaway, brought this action to recover the sum of $6250 against defendants-appellees, Thelma Sweat, a real estate broker, her husband Otto Sweat, the National Surety Company, a corporation, surety on the broker's official bond, and John F. Smith and Kenneth W. Franklin, purchasers of the restaurant property in question. The amended complaint, upon which the case was tried, alleged: that in November of 1946, plaintiff was the owner of a restaurant located[70 Ariz. 366] at 1735 East Van Buren Street, Phoenix, Arizona, together with the furniture and fixtures located therein; that on November 14, 1946, she entered into a brokerage contract with defendant, Thelma Sweat, to sell the restaurant for a commission of 5%; that said broker did sell the restaurant for the sum of $6250 to defendants Smith and Franklin, receiving the purchase price from them and delivering a bill of sale from plaintiff to the purchasers who took possession thereof. It is further alleged that Thelma Sweat subsequently failed to pay the net purchase price over to the plaintiff but instead, without plaintiff's knowledge or consent, returned same to the purchasers.
While certain admissions, hereinafter enumerated, were made by the answering defendants, they all denied the plaintiff's ownership of the restaurant at the time of the sale. The purchasers set forth in their answer the assertion that the restaurant was in fact owned by one James C. Estes, who they allege had transferred it to the plaintiff in violation of a restraining order procured against him in a then pending divorce action and that therefore the entire transaction was a fraud upon them and it was for this reason that they had demanded and obtained a return of the consideration from the broker. As an affirmative defense, Thelma Sweat alleged that she had returned the money to the purchasers pursuant to an authorization from plaintiff.
The case was tried before the court sitting with a jury. Plaintiff's case consisted solely of her own oral testimony and the admission in evidence of two bills of sale and a telegram. When plaintiff Gallaway rested a motion to require her to elect whether to proceed by way of a demand for specific performance or an action for damages was denied by the court. All of the defendants then made motions for instructed verdicts upon the ground that plaintiff had failed to establish a prima facie case. The court, without specifying the basis therefor, granted said motions in favor of all defendants and directed judgment to be entered accordingly. After a denial of a motion for new trial this appeal followed.
It is unquestionably the rule in Arizona that a motion for directed verdict should be denied where there is competent evidence to support the plaintiff's case. The most recent expression of this rule is found in Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201, 204:
To which may well be added the following statements:
It is also fundamental that the plaintiff need offer no proof in support of such allegations of her complaint as are admitted to be true by the answers filed in the case, and that such admitted facts may be considered as a part of the evidence in the case. Perley v. Goar, 22 Ariz. 146, 195 P. 532; Consolidated Nat. Bank of Tucson v. Cunningham, 24 Ariz. 437, 210 P. 850; State ex rel. Conway v. Glenn, 60 Ariz. 22, 131 P.2d 363.
Considering first the pleadings, we find the following necessary elements of plaintiff's case as alleged in her complaint to have been admitted by the answers, viz.: (1) that Thelma Sweat, the broker, made the sale to defendants Smith and Franklin; (2) that the consideration agreed upon was $6,250.00; (3) that this consideration was paid to the broker by the purchasers; (4) that the defendants Smith and Franklin went into possession of the restaurant; (5) that the consideration was thereafter returned by the defendant Thelma Sweat, to defendants Smith and Franklin; (6) that defendants Smith and Franklin have retained the consideration returned to them and have 'declined to have any further connection with the transaction.' Furthermore, the plaintiff's testimony stands uncontradicted that the purchase price was returned to Smith and Franklin by Mrs. Sweat without plaintiff's knowledge or consent.
The only other matter which plaintiff would be required to prove in order to establish a prima facie case would appear to be the issue as to whether or not she was the owner of the restaurant and its appurtenant furniture and fixtures. In analyzing plaintiff's testimony as to this crucial question, we shall state same in the light most favorable to her. At the outset she testified:
(Emphasis supplied.) and later in the trial the following question was asked and answer thereto given, viz.:
(Emphasis supplied.)
Incidentally, as to the claim that the property belonged to James C. Estes on November 14, 1946, it is interesting to note that at the insistence of the defendants, Estes was brought in as a party to the suit and filed a formal pleading in which he denied ownership of the cafe and asserted it was owned on the date last named by the plaintiff, Grace M. Gallaway.
As to this matter of ownership it is the contention of the defendants that plaintiff on cross examination gave testimony that refutes her claim of ownership and conclusively establishes that she was not the legal owner of the restaurant and hence they assert the trial court was fully justified in taking the case from the jury. It was developed at the trial that the restaurant had formerly been owned by one John Jarvis. The latter, on July 1, 1946, sold the property to James C. Estes for $5,000, payable $3,200 down and $1,800 payable on or before October 1, 1946, with interest at 6% on the unpaid balance. Jarvis retained the bill of sale made to Estes as security for this unpaid balance. On July 4, 1946, the plaintiff came to Phoenix at the request of Estes to manage and operate the restaurant. The next day she met Jarvis...
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