Nordale v. Fisher, 6889

• Decision Date: 24 April 1963
• Docket Number: No. 6889,6889
• Citation: 380 P.2d 1003,93 Ariz. 342
• Parties: Joseph NORDALE, individually and as a Licensed Real Estate Broker, and Joseph Nordale Realty and Insurance Company, a corporation, Appellants, v. Tillie M. FISHER, a widow, Appellee.
• Court: Arizona Supreme Court

Page 1003

380 P.2d 1003

93 Ariz. 342

Joseph NORDALE, individually and as a Licensed Real Estate Broker, and Joseph Nordale Realty and Insurance Company, a corporation, Appellants, v. Tillie M. FISHER, a widow, Appellee.

No. 6889.

Supreme Court of Arizona, In division.

April 24, 1963.

Fickett & Dunipace, Tucson, for appellants.

William Gordon, Tucson, for appellee.

RAUL H. CASTRO, Superior Court Judge.

This is an action by plaintiffs-appellants against defendant-appellee for the recovery of a real estate commission based on a claim that defendant as owner gave plaintiff broker a seventy-five day exclusive listing and then sold the property to a buyer within a seventy-three day period. Plaintiffs filed a complaint alleging two causes of action. Joseph Nordale filed in his individual capacity as a licensed real estate broker and as a broker for Joseph Nordale Realty and Insurance Company, an Arizona corporation.

It is undisputed that on December 9, 1957 defendant gave plaintiff broker a listing contract for a term of fifty days. The listing was a combination of an exclusive listing and also a non-exclusive listing on a printed form. The top portion of the listing was non-exclusive and was for fifty days. The defendant signed the 'open' listing on the line indicated. The bottom portion of the listing being exclusive, was also signed by the defendant. The property was not sold during the first listing period. A new listing was given by the defendant to the plaintiffs of March 3, 1958. The same type of listing agreement was used on the second listing. The top portion was for sixty days 'open' and the bottom portion for seventy-five days. Defendant's signature does not appear on the sixty day listing, but does appear on the exclusive seventy-five day listing. Defendant admits signing the second listing but denies that the number seventy-five appeared on the instrument when she signed. Her testimony was that plaintiffs told her it was a sixty day extension and that when she signed the only figure appearing was the number sixty. The sale by defendant to Maurice Cohen on May 15, 1958 was within seventy-five days of the second exclusive listing, but beyond sixty days of the second listing. Plaintiffs claim a commission on the sale.

Two days before the trial plaintiffs moved for continuance on the ground that Herbert Humiston, salesman who had procured defendant's signature, was ill in Los Angeles and unable to testify. The court below granted the continuance only if plaintiff released an outstanding garnishment against the escrow agent in the sale to Cohen. Plaintiffs refused to release the garnishment. On the trial day, plaintiffs again moved for a continuance. The motion was denied.

Plaintiffs made the following assignments of error: (1) The court erred in denying motions for continuance; (2) The court erred in entering judgment against plaintiffs on both counts for the reasons: (a) The judgment was contrary to the evidence; (b) The refusal to grant a continuance was capricious and prejudicial to plaintiffs since it prevented them from interrogating their key witness.

Continuances in Arizona come within the purview of Rules 42(c) and 42(d) of Arizona Rules of Civil Procedure, 16 A.R.S. Rule 42(c) reads:

'When an action has been set for trial on a specified date by order of the court, no postponement of the trial shall be granted except for sufficient cause, supported by affidavit, or by consent of the parties, or by operation of law.'

As can be seen, a motion for continuance is addressed to the sound judicial discretion of the trial court predicated on good cause. Daru v. Martin, 89 Ariz. 373, 363 P.2d 61; Merryman v. Sears, 50 Ariz. 412, 72 P.2d 943. Rule 42(d) reads:

'* * * If the ground for the application is the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him. The application in either case shall also state that the postponement is not sought for delay only, but that justice may be done. If the adverse party admits that such testimony would be given and that it will be considered as alctually given on the trial, or offered and overruled as improper, the trial shall not be postponed. Such testimony may be controverted as if the witness were personally present.'

The question becomes whether the lower court abused its discretion in refusing to grant continuances.

The trial was set for hearing on its merits for March 11, 1959. On March 9, 1959, plaintiffs filed a motion for continuance and attached thereto an affidavit by Joseph Nordale. The affidavit did not comply with the requirements prescribed in Rule 42(d). Whether this matter was presented to the court is not indicated by the record but it is plain there could be no abuse of discretion since the affidavit did not comply with the rules because it did not state what was expected to be proved by the witness.

As stated, two days later plaintiffs again moved for a continuance. On this same day an affidavit signed by Joseph Nordale was filed with the court. This time the affidavit fully complied with the requirements of Rule 42(d) of Rules of Civil Procedure. In recapitulation, the contents of the affidavit indicated the following: that Herbert Humiston was now a resident of Los Angeles, California and was taking daily treatments for cancer at the California Lutheran Hospital and was unable to appear to testify in Tucson. In substantiation of this fact, a telegram was attached to the affidavit from Dr. Hugh F. Hare of Los Angeles; that the witness would testify that he inserted the number 'seventy-five' days in the listing of March 3, 1958 prior to obtaining the defendant's signature; that the listing was not changed, altered nor any additions made thereto after defendant signed it.

During the argument for continuance, plaintiffs' counsel expressed to the court that Mr. Humiston appeared at their office about seven days before trial to clarify certain matters concerning his wife's estate. He came to Tucson and departed the same day by plane. Mr. Humiston was then ill. No effort was then made by plaintiffs to depose him. Counsel instead chose the route of obtaining medical confirmation so that a continuance might be sought.

The trial court was influenced in its ruling by the following facts: (1) defendant had an out-of-state witness available to testify; (2) the previous order had been conditioned on releasing the garnishment which was refused; (3) the subject matter at issue had been covered in a deposition of Herbert Humiston. As to the latter, a review of the deposition discloses that Humiston's testimony pertaining to material matters was fully covered. Plaintiffs chose later not to avail themselves of the opportunity to perpetuate their examination of the witness. We are unable to see where much more would be added than what appears on the deposition nor where plaintiffs were prejudiced. In view of the foregoing, we are of the opinion that the trial court did not act in an arbitrary nor a capricious manner in refusing to grant a continuance.

We shall now consider the merits of the second assignment of error, namely that judgment should not have been entered against plaintiffs on both counts because it was contrary to the evidence in the case and because of insufficient evidence. After reviewing the evidence, there are several reasons why we cannot agree with plaintiff's contention. This Court has many times held that where evidence is in conflict we will not substitute our opinion for that of the trial court. Daru v. Martin, supra. It is also well known that evicdence will be taken in the strongest manner in favor of the appellee and in support of the result of the trial court, and where there is any reasonable evidence to support it, a judgment will not be disturbed. Daru v. Martin, supra; Church v. Meredith, 83 Ariz. 377, 321 P.2d 1035; Eldridge v. Jagger, 83 Ariz. 150, 317 P.2d 942.

Let us consider the evidence to determine whether there was reasonable evidence to support the judgment of the lower court. Defendant's husband died sometime in 1957 so she decided to sell her house. She visited plaintiff, Joseph Nordale, in his office in Tucson sometime in November or December 1957 and agreed to list the property with him. A few days later a Mr. Herbert Humiston went to defendant's home and requested her to sign the listing on two places for a period of fifty days. The house was not shown until February 1958. Shortly prior to the open house Mr. Nordale came to defendant's home and obtained data for purposes of advertising the home. Defendant saw Mr. Nordale one time after that to advise him she intended to go to Detroit.

We prefer to first dispose of plaintiffs' second count to simplify the facts. Plaintiffs' second cause of action alleges that they brought together the defendant as seller and Maurice Cohen as buyer and that they were the procuring cause in the culmination of said sale. Before plaintiffs can prevail as to this second count, they must show by a preponderance of evidence that they were the efficient, proximate and procuring cause of the sale. Bowser v. Sandige, 74 Ariz. 397, 250 P.2d 589; Porter v. Ploughe, 77 Ariz. 33, 266 P.2d 749. Furthermore, whether a broker is a procuring cause of sale of property listed with him is, usually, a question of fact. Clark v. Ellsworth, 66 Ariz. 119, 184 P.2d 821. The trial court heard the facts and in doing so ruled against the plaintiffs. We agree with the lower court because on reviewing the record, we find the following: the purchaser Cohen testified he never met plaintiff Nordale nor any member of his staff prior to his purchasing the property. He met Nordale for the first time when his deposition was being taken on June 24, 1958. The property was sold on May 15, 1958. A Mrs. Eva Hack corroborated the fact of having told Cohen about the availability of defendant's property and introduced the purchaser to defendant. Plai...