Moore v. Meyers

• Decision Date: 21 February 1927
• Docket Number: Civil 2518
• Citation: 253 P. 626,31 Ariz. 347
• Parties: MAGGIE YOUNG MOORE and A. J. MOORE, Appellants, v. JAMES MEYERS, Operating Under the Firm Name of MEYERS INVESTMENT COMPANY, and J. R. JOHNSON, NATIONAL SURETY COMPANY, a Corporation, and E. HICKMAN, Appellees
• Court: Arizona Supreme Court

253 P. 626

31 Ariz. 347

MAGGIE YOUNG MOORE and A. J. MOORE, Appellants, v. JAMES MEYERS, Operating Under the Firm Name of MEYERS INVESTMENT COMPANY, and J. R. JOHNSON, NATIONAL SURETY COMPANY, a Corporation, and E. HICKMAN, Appellees

Civil No. 2518

Supreme Court of Arizona

February 21, 1927

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Mr. T E. Allyn, for Appellants.

Mr John W. Ray, for Appellees.

OPINION

LOCKWOOD, J.

Maggie Young Moore and A. J. Moore, her husband, hereinafter called plaintiffs, brought suit against James Meyers, operating under the firm name of Meyers Investment Company, J. R Johnson, National Surety Company, a corporation, and E Hickman, for damages sustained by plaintiffs through the alleged fraudulent representations of Meyers and Johnson, whom we will hereinafter call defendants, in regard to the sale of certain real estate located in Phoenix. Meyers was a real estate broker, bonded under chapter 160, Session Laws of 1921, and Johnson was a salesman for Meyers, bonded under the same act, while the National Surety Company and Hickman were sureties on the bonds of Meyers and Johnson, respectively. An answer was filed by Johnson, Meyers and Hickman jointly, and a separate one by the National Surety Company. Various motions and demurrers were presented, and the case finally set for trial for September 9, 1925. On September 5th, plaintiffs and defendants being both duly represented, the court granted the latter the privilege of filing a special demurrer and motion to elect, and the special demurrer was sustained on the ground that an action ex contractu had been joined with one ex delicto, whereupon plaintiffs moved to dismiss the action as to Hickman and the surety company.

The case came regularly on for trial before a jury, and, after evidence both oral and written had been duly presented by plaintiffs, on motion of defendants the jury returned an instructed verdict for them. After the usual motion for new trial had been overruled, an appeal was taken to this court.

There are three assignments of error which we will consider in their order. The first is that the court should not have allowed defendants to interpose the special demurrer within four days of the time set for trial. Chapter 14 of the Session Laws of 1925 provides that all pleadings or proceedings may, upon leave of the court, be amended at any stage of the action upon such terms as the court may prescribe. It was therefore discretionary with the trial court to allow the special demurrer to be filed, and nothing appears in the record showing such discretion was abused.

The second point raised is that the court should not have sustained the special demurrer, on the ground that an action ex contractu against the surety company and Hickman was joined with one ex delicto against Meyers and Johnson. Whether this be error we need not determine, as the record shows plaintiffs after the ruling voluntarily dismissed their action against the surety company and Hickman.

The third and vital assignment is that the court erred in instructing the jury to return a verdict for the defendants Meyers and Johnson. In order that we may consider this assignment intelligently, it will be necessary for us to review certain parts of the pleadings and the evidence. The complaint, after setting up that Meyers and Johnson were bonded real estate dealers, alleges, in substance, that they induced plaintiffs to purchase certain property situated in Phoenix, and belonging then to one Bryant, by the means of certain fraudulent representations and misstatements made by the defendants. It is set up that, when defendants first attempted to sell the property to plaintiffs, the latter refused to buy it unless it could be immediately resold to some other party for the sum of $5,000, with a cash payment of $500, and the balance at the rate of $40 per month, including interest; that thereafter, and before the deal was consummated, defendants produced a written contract for a sale to one Chenault at such price and terms, reciting that the purchaser had paid $200 down as earnest-money, and that the balance would be paid in accordance with the terms insisted upon by plaintiffs, but that, if for any reason the contract of sale fell through, the seller of the property and defendant Meyers should divide the earnest-money equally between them, and represented that such contract had actually been made as appeared on its face.

Plaintiffs further allege that, relying upon the representations made by defendants in regard to the Chenault contract, they bought the property through defendants at the agreed price of $5,000; that thereafter it appeared that the representations made by Johnson and Meyers that Chenault had paid $200 earnest-money were false to the knowledge of defendants at the time, and were by them made for the purpose of inducing plaintiffs to purchase the property. Defendants answered by a general denial, and further set up as follows:

"II. That by the contract dated September 26, 1924, and pleaded and set out in full in paragraph IX of the complaint it is provided, among other clauses therein, viz.:

"'In the event the seller complies with his part of this contract and the purchaser fails to comply with his part of this contract, and then the earnest-money receipted for herein shall be divided equally between the seller and Meyers Investment Company, provided said one-half of said earnest-money does not

"That thereafter, when the purchaser, Chenault, under said contract had failed and refused to comply with his part of the contract, and in October, 1924, the plaintiff Mrs. A. J. Moore demanded of and received from the Meyers Investment Company the one-half of such earnest-money deposited, to wit, $100, for which she gave a receipt in writing.

"Defendants say that by so demanding, receiving and receipting for said sum of $100, the one-half of the deposit provided in said contract of sale with Chenault, they are estopped now to deny there was such sum deposited, or that they were misled or defrauded in any manner in or under that contract. . . . "

Plaintiffs replied to the aforesaid answer, alleging that it did not sufficiently plead an estoppel. The case came on for trial before the court and a jury on the 9th of September. Evidence was offered on behalf of plaintiffs, tending to show substantially the following facts: That, realizing plaintiffs would not purchase the property in question unless they had an immediate assurance of a resale on the terms above specified, defendants endeavored to sell the property to one Chenault. After considerable discussion he refused to take it on those terms, but finally defendant Johnson and Bryant offered to rebate the price $200, making it actually cost Chenault...