Mackey v. Spangler

• Decision Date: 02 October 1956
• Docket Number: No. 6092,6092
• Citation: 81 Ariz. 113,301 P.2d 1026
• Parties: Alvin W. MACKEY and Francis Antonio Maldonado, Appellants, v. Lester SPANGLER, William Clark McGinnis and Earl Wayne Fackler, Appellees.
• Court: Arizona Supreme Court

Page 1026

301 P.2d 1026

81 Ariz. 113

Alvin W. MACKEY and Francis Antonio Maldonado, Appellants, v. Lester SPANGLER, William Clark McGinnis and Earl Wayne Fackler, Appellees.

No. 6092.

Supreme Court of Arizona.

Oct. 2, 1956.

Hugh Caldwell and Barber, Lesher & Dees, Tucson, for appellants.

John C. Gung'l and Ray F. Harris, Tucson, for appellees.

WINDES, Justice.

Lester Spangler, William Clark McGinnis and Earl Wayne Fackler, appellees herein, filed complaint against Alvin W. Mackey and Francisco Antonio Maldonado, appellants herein, alleging in substance that plaintiffs were the owners of certain lode mining claims and a mill situated in Sinaloa, Mexico; that defendants with the intent to deceive and defraud plaintiffs falsely and fraudulently represented to Three Peaks Corporation that they were the sole owners and entitled to the possession of said claims and could sell and convey clear title thereto; that such representations were made for the purpose of cheating and defrauding plaintiffs or their interest in the property; that relying upon such representations the corporation executed an option to purchase the claims for the sum of $2,000,000 payable in instalments; that $1,000 was paid at the time of executing the contract, and the agreement was placed in escrow with the Valley National Bank in Tucson; and that $8,500 of the purchase price had been paid under the escrow and no part thereof was paid to the plaintiffs. It is further alleged that $1,000 of said amount was still in the hands of the bank, and the bank was garnisheed. The prayer was that the bank be restrained from delivering the last mentioned sum to the plaintiffs or either of them; that judgment be rendered against defendants Mackey and Maldonado establishing plaintiffs' rights in the claims; that plaintiffs have judgment against defendants to the extent of their respective interests in the payments that had been made, and for such other relief as may be justified. Judgment was rendered for the plaintiffs and defendants appeal.

Defendants moved to dismiss the complaint upon the ground that it failed to state a claim upon which relief could be granted. A denial of this motion is the first basis for claiming error of the trial court. Defendants contend that the basis of the action is a fraud upon the purchaser of the property and the usual elements of fraud upon the plaintiff not having been alleged no claim is stated warranting relief to the plaintiffs. Under the new rules of procedure the test as to whether a complaint is sufficient to withstand a motion to dismiss is whether enough is stated therein which, if true, would entitle plaintiff to some kind of relief on some theory. The court should not grant a motion to dismiss unless it appears certain that the plaintiff would be entitled to no relief under any state of facts which is susceptible of proof under the claim as stated. Rule 8(a), Rules of Civil Procedure 1956, section 21-404, A.C.A. 1939; 2 Moore's Federal Practice, par. 8.13; 6 Moore's Federal Practice, par. 54.60. The purpose of the foregoing rule is to avoid technicalities and give the opponent fair notice of the nature and basis of the claim and indicate generally the type of litigation involved. 1 Barron & Holtzoff, section 255. We have no difficulty in saying that, assuming the truth of the statements set forth in the complaint, the defendants obtained and illegally retained funds belonging to the plaintiffs, and the defendants by the statements are given fair notice of the nature of the litigation. The court correctly denied the motion to dismiss.

It appears from the evidence that plaintiff Spangler made discoveries which resulted in the location of the claims involved; that pursuant to an arrangement between Spangler and defendant Mackey about April 1952, the latter was given a one-half interest in the event he found a purchaser satisfactory to both parties; that under Mexican law only a Mexican national can make what is the equivalent under our law of mining locations; that defendant Maldonado was selected to make such location for which he was to be paid a consideration of 10,000 Mexican pesos; and that under date of May 8, 1952 Maldonado gave defendant Mackey a document giving him the right to purchase the property within five years for the said sum of 10,000 pesos; that thereafter, under date of June 17, 1952, Spangler and Mackey entered into an agreement with the Three Peaks Corporation whereby the corporation was given an option to purchase the property for $2,000,000; that in April 1953, Mackey by written instruments conveyed to the plaintiffs, Fackler and McGinnis each a one-fourth interest in the property....