Jenkins v. Irvin

• Decision Date: 01 February 1919
• Docket Number: Civil 1616
• Parties: A. R. JENKINS, Appellant, v. JOHN L. IRVIN, Appellee
• Court: Arizona Supreme Court

178 P. 33

20 Ariz. 164

A. R. JENKINS, Appellant, v. JOHN L. IRVIN, Appellee

Civil No. 1616

Supreme Court of Arizona

February 1, 1919

APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr Hubert W. Clark, for Appellant.

Mr. A S. Hawkins, for Appellee.

OPINION

ROSS, J.

This is an action by appellee for commissions for effecting a sale of land for appellant under a written contract of employment. It was tried by the court without a jury, and from a judgment favorable to appellee appellant appeals.

The rules of the court were very differently observed by appellant in the making and presenting of his assignment of error, and the temptation to sustain appellee's objections thereto is withstood only because we prefer to decide each case upon its merits, if we can reasonably ascertain from the brief as a whole the errors complained of and are satisfied that appellant has not purposely or knowingly ignored the rules. Will say, without restating here what the rules and statutes require, that there are a number of propositions of law and criticisms scaterred throughout appellant's brief, but just what was intended as assignments of error and what as argument is most difficult to determine by an inspection of the brief. What was said in Baumgartner v. State, ante, p 157, 178 P. 30, just decided, in regard to the assignments, might well be said of this record.

Of the many propositions or assignments, we will review those that we consider of sufficient merit.

It is contended by the appellant that his general demurrer to the complaint should have been sustained. We would not recommend the complaint as a model to be followed, but any criticism of it would not be for a defect of substance. It contains all of the allegations of a legal contract of agency to sell real estate and, in addition, full performance by appellee. That there were some unnecessary allegations, or some conclusions of law in addition to the necessary allegations, did not make the complaint vulnerable to general demurrer.

It is next urged the court erred in admitting in evidence "the written authority of appellee to sell the land in question," for the reason it had been materially altered after its execution by appellant. This assignment is based upon a question of fact which the court must have resolved against appellant. If the alteration had been confessed, its materiality would be a question of law and properly before us for decision under this assignment, but it was denied that any alteration had taken place, and upon the evidence submitted the court found the fact against appellant's contention and admitted the contract in evidence. The fact that the apparent alteration by interlineation was explained after the admission of the contract, rather than before, was not prejudicial error, as the order of proof was within the court's discretion.

Appellant complains because the court, at the conclusion of appellee's case, overruled his motion to dismiss. His ground for the motion was that, according to...