McMurran v. Duncan

• Decision Date: 25 February 1916
• Docket Number: Civil 1504
• Citation: 155 P. 306,17 Ariz. 552
• Parties: J. A. McMURRAN, Appellant, v. W. G. DUNCAN, Appellee
• Court: Arizona Supreme Court

155 P. 306

17 Ariz. 552

J. A. McMURRAN, Appellant, v. W. G. DUNCAN, Appellee

Civil No. 1504

Supreme Court of Arizona

February 25, 1916

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Reversed and remanded, with instructions to dismiss.

Messrs Rawlins & Little and Mr. Kirby D. Little, for Appellant.

Mr. Jay Good, for Appellee.

OPINION

ROSS, C. J.

The appellee sued the appellant upon a contract, alleged in his complaint as follows:

"The defendant herein, J. A. McMurran, engaged and employed plaintiff to find a purchaser for defendant's herd of cattle; . . . that the said defendant then and there promised and agreed to pay plaintiff on demand for his services in finding a purchaser for said herd of cattle the sum of $500 and the plaintiff in consideration thereof then and there agreed to try to find a purchaser for said cattle; that thereafter . . . plaintiff found a purchaser for said cattle that was satisfactory to defendant, . . . who purchased all of said cattle from the defendant . . . . The said plaintiff was the means of bringing said parties together and bringing about the sale of said cattle."

The appellant answered the complaint and, among other things, set forth in his answer:

"That no note or memorandum of said promise or agreement set forth . . . in plaintiff's complaint was made in writing and signed by this defendant or any other person by his authority or at all; that no such promise or agreement was ever entered into by defendant with plaintiff in any manner whatever."

The case was tried to a jury, and a verdict returned in favor of the appellee, upon which judgment was duly entered. It is admitted that the contract sued upon was not in writing.

It is the contention of the appellant that an agent or broker cannot maintain an action for his services in negotiating a sale of personal property unless the contract of agency or brokerage be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized. He also contends that the appellee failed to establish the contract as alleged in the complaint. We will confine our attention to the consideration of the first proposition, it being determinative of this lawsuit.

There was added to our statute of frauds by the legislature of 1913 a new rule concerning agreements of agents or brokers something like, but very much broader and more comprehensive than, the law of California and some of the other states. This rule is found in paragraph 3272 of the Civil Code of 1913, and reads as follows:

"No action shall be brought in any of the courts in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the parties to be charged therewith, or by some person by him thereunto lawfully authorized: . . . (7) An agreement authorizing or employing an agent or broker to purchase or sell real estate, mines, or other property, for compensation or a commission."

The rule, as stated in subdivision 7, contains words not to be found in the laws of any other state so far as we know. Those states require the agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission to be in writing.

It is the contention of appellee that our statute should be construed to have the same meaning as if the words "mines or other property" were omitted. He would limit its application to real property only. He would give no meaning to the words "other property," or, if any, he would limit it to some species of real estate. He invokes the maxim of the law noscitur a sociis, "the meaning of a doubtful word may be ascertained by reference to the meaning of the words associated with it." And also the rule of ejusdem generis. Whether these rules of construction are applicable or not in this case, it would seem, depends on the inability to determine the meaning of the language used without extrinsic aid. If the meaning is plain and clear, then no rules of construction are permissible.

It is evident that the legislature had before it, at the time this law was passed, the statutes of some other state and, not being satisfied with the language used, endeavored to broaden and extend its meaning so as to include property other than real estate. The California statute in that regard is exactly like ours, except it does not contain the words "mines or other property." California was satisfied to limit the agreement authorizing or employing an agent or broker to purchase or sell real estate to be in writing and signed, but we went further than that and required the agreement, not only in that instance, but when it was concerning mines or other property, likewise to be in writing.

Paragraph 5552 of the Civil Code of 1913 defines "real property" as being coextensive with lands, tenements and hereditaments, and "real property" and "real estate," as we understand it, mean the same thing. By the same paragraph of the statute the word "property" is defined as including both real and personal property. Real estate exhausts that class of property; it includes the whole class genus. The addition of the word "mines" could not in the least expand or limit the meaning of the words "real estate," although it is descriptive of a class of property known...