McAlister v. Cooper

• Decision Date: 18 April 1962
• Docket Number: No. 6815,6815
• Parties: Louis J. McALISTER and Lorene E. McAlister, his wife, Appellants, v. C. T. COOPER d/b/a Cactus Realty, Appellee.
• Court: Arizona Supreme Court

Page 767

370 P.2d 767

91 Ariz. 191

Louis J. McALISTER and Lorene E. McAlister, his wife, Appellants, v. C. T. COOPER d/b/a Cactus Realty, Appellee.

No. 6815.

Supreme Court of Arizona, In Division.

April 18, 1962.

Books, Malsh & Silverstone, Tucson, for appellants.

Walter M. Stevenson, Tucson, for appellee.

PORTER MURRY, Superior Court Judge.

This is an appeal by the defendants from a directed verdict granted the plaintiff in an action by C. T. Cooper d/b/a Cactus Realty, a real estate broker, to recover a commission alleged to be due him from Louis J. and Lorene E. McAlister, husband and wife, vendors of certain real property. The parties will be referred to as they appeared in the trial court.

In October of 1957, defendants as owners of certain real property in Tucson, Arizona, telephoned plaintiff broker expressing their desire to sell. On October 18, plaintiff showed the house to Mr. and Mrs. Santoro hereinafter called the buyers who loked the house and expressed a desire to buy it. An offer was submitted to the defendants in the form of a preliminary sales agreement signed by the buyers and labeled 'Deposit Receipt and Agreement'. This agreement was on a printed form and had been filled out by the plaintiff or his agent, a Mr. Towler; they then took the offer to the home of the defendants. Defendants rejected the offer and a discussion followed between plaintiff and defendants concerning the purchase price of the house. The 'Deposit Receipt and Agreement' was changed by striking the purchase price of $11,500 and substituting the price of $12,500. The alteration was initialed by defendant Louis J. McAlister with the initials L. J. M. and then both defendants signed the instrument. The buyers later initialed the price change on the preliminary sales agreement. The next day plaintiff called defendants to his office to complete the transaction but defendants refused to sign and thereafter refused to deliver title to the property. Suit was then brought by the plaintiff for his commission. This portion of the facts is not in dispute.

During the course of the trial four copies of the 'Deposit Receipt and Agreement' were admitted into evidence marked plaintiff's exhibits 1, 2, and 3 and defendants' exhibit A. It is with these exhibits that we are concerned. They were initially all identical, in fact they were an original and three copies, but when admitted into evidence no two of them were alike. Plaintiff's exhibit 1 had typed on the back of the instrument: '$660 commission to be paid to Cactus Realty on the property located at 1528 N. Rosemont, City of Tucson, County of Pima, State of Arizona.' It was signed thereunder: 'Cactus Realty by C. T. Cooper.' This is the only one of the four exhibits which has this phrasing typed on the back. Plaintiff's exhibit 2 has '$660 Commission to be paid to Cactus Realty Co.' typed on the front of the instrument. Plaintiff's exhibit 3 and defendants' exhibit A do not contain this provision. In addition all exhibits say: 'to pay agent a Commission of 6%.' which would be $750. Plaintiff's exhibits 1, 2 and 3 contain the clause: 'Seller to install a fifty-five c f m Cooler with Pump and also put pea gravel on driveway. All utilities to be installed and in working condition.' Defendants' exhibit A contains the phrase 'Seller to install a fifty-five c f m Cooler and also put pea gravel on driveway. All utilities to be installed and in working condition.'

Since no two of the exhibits were the same at the time of trial and since all four exhibits were signed by all the perties, the question arises whether all or any of the alterations were made after the signatures were attached and if so by whom. Defendants testified that neither the typing on the back of plaintiff's exhibit 1 nor the words '$660 commission to be paid to Cactus Realty Co.' on the face of plaintiff's exhibit 2 were there when they signed or initialed the instruments. Plaintiff agreed, saying that the change was made the next morning at his direction. The defendants further testified that they agreed orally with plaintiff for a commission fee of $500 to be paid upon the close of the transaction.

The plaintiff denied that the sum of $500 was ever mentioned as the commission on the sale but says that the defendants agreed to take $12,500 for the property if plaintiff would take $660 for his commission, and that the commission of $660 was agreeable to both parties. All the parties testified that this discussion occurred at the home...