Mollohan v. Christy
| Decision Date | 06 March 1956 |
| Docket Number | No. 5978,5978 |
| Citation | 294 P.2d 375,80 Ariz. 141 |
| Parties | Herb D. MOLLOHAN, Appellant, v. Alex C. CHRISTY, Appellee. |
| Court | Arizona Supreme Court |
Randall & Chatwin, Phoenix, for appellant.
Stockton & Karam and Earl E. Weeks, Phoenix, for appellee.
Appellee Alex C. Christy (plaintiff below) brought suit against appellant Herb D. Mollohan, seeking a money judgment for $1,968.85. (At the close of the trial the court permitted a trial amendment to correspond to the proof, by plaintiff increasing the amount sued for to $2,252.40.) From a cursory examination of the complaint it would at first appear it was for money had and received, but a closer inspection reveals that really it is an equitable action for an accounting. The case was tried to the court, sitting without a jury, and as no findings of fact were requested, none were made, which leaves us somewhat in the dark as to the precise views of the court on certain contested items of the accounting. The court entered judgment for the plaintiff and against the defendant for the principal sum of $2,199.40; however defendant had offered to stipulate that judgment be entered against him for $872.11, which leaves items in dispute aggregating $1,327.29. A motion for new trial on the grounds of: (1) newly discovered evidence and (2) the excessiveness of the judgment was made and denied. This timely appeal followed.
We shall hereafter refer to the parties by either the use of their surnames or as they appeared in the lower court, i. e., plaintiff or defendant.
The facts giving rise to this lawsuit may be briefly summarized as follows: About the year 1945 Christy had purchased some 10 acres of land lying north of Scottsdale from a Mr. Marsten at an agreed price of $4,200; a substantial down payment had been made and thereafter certain annual payments of principal and interest were met. The agreement between the parties had been placed of record and an escrow had been set up with a local title company handling the matter for collection. Late in the year 1950 or early in 1951, Christy was in real financial distress; he owed various parties in the Phoenix area and several notes at the Valley National Bank, on one of which Mollohan was a co-signer; he was badly in arrears on payments due under the Marsten contract and thereby stood to lose this property. It was at this crucial stage he returned to Phoenix and appealed to his friend Mollohan to 'bail him out' by advancing some $2,463.19 to pay off the Marsten contract; to then take over the real estate, sell it, pay his obligations therefrom and remit the balance to him. Out of the goodness of his heart Mollohan agreed to do this. Christy gave a quitclaim deed to Marsten to avoid the forfeiture of his contract; Mollohan put up the cash to pay Marsten off in full and in return received from the latter a warranty deed for the realty. With the title in Mollohan's name the property was listed with certain realtors, and in February 1951 a purchaser in the person of one Shadegg was found and the property sold to him for a consideration of $6,500, plus a brokerage fee of $300 to a realtor. This transaction was placed in escrow with the same title company and after the escrow expenses, including brokerage fee had been paid, the balance of the money received from the sale, aggregating $6,398.79, was paid by the title company directly to the Valley National Bank in order that the indebtedness due them from Christy might be liquidated. Mollohan stoutly maintains that on June 4, 1951 he forwarded by mail to Christy all papers received from the bank, viz.: copy of receipt given the bank by Mollohan, Christy's cancelled notes, insurance policies, assignments, etc.; included therein was a statement of account which he had prepared, coupled with his check for $872.11, being the balance which he claims was due Christy. The latter denies receiving anything but the check. Mollohan maintained his copy of the accounting had been taken by the F.B.I. and not returned to him; the result was that at the trial this 70-year-old defendant was compelled to testify practically wholly from memory.
Until this trouble arose the parties to the suit had been intimate friends of many years standing; both Christy and his daughter had at various times lived and boarded in the Mollohan home and on many previous occasions Mollohan had aided Christy when the latter was in need of funds, both by directly loaning him money and by becoming a co-signer of notes given by Christy to the bank. It had not been the practice of the parties to keep strict book accounts with one another.
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