Todaro v. Gardner, 5290
| Decision Date | 09 May 1951 |
| Docket Number | No. 5290,5290 |
| Citation | 231 P.2d 435,72 Ariz. 87 |
| Parties | TODARO et al. v. GARDNER |
| Court | Arizona Supreme Court |
W. T. Choisser, of Phoenix, for appellants.
Rawlins, Davis, Christy, Kleinman & Burrus, Phoenix, for appellee.
LA PRADE, Justice.
This is an appeal from a judgment secured against the defendants below, in the sum of $5,000 for money loaned. Defendant appellants have challenged the sufficiency of the evidence to sustain the judgment.
The factual situation out of which this controversy arose is as follows:
Plaintiff claims and testified that while negotiating with the defendants for the purchase of their auto court for the sum of $210,000, he was importuned by the defendants and did 'advance' them $5,000 with which to keep certain mortgage payments current in order that 'the property would be available if and when we got out contract agreed upon.' Defendants on the other hand contend that they had agreed to sell the premises to plaintiff and that the plaintiff had paid the $5,000 as earnest money on the purchase price. Plaintiff admitted that at the time he paid over the $5,000, he had already agreed to purchase the premises and that the terms had been agreed upon; and asserted that his only concern was to determine, with the aid and assistance of his lawyers at Salt Lake City, whether the property was subject to any governmental rent or tenancy controls. Specifically in this behalf the plaintiff testified as follows: (Emphasis supplied.)
Following preliminary negotiations and dickerings in the office of defendants' attorney on June 28, 1947, the parties all repaired to the office of the Arizona Title Guarantee and Trust Company, where it was contemplated that the deal would be consummated by the execution of the necessary instruments.
In the office of the title company an escrow officer by the name of Dumont was contacted. At that time and place plaintiff gave all of the information to the escrow officer covering terms and conditions of the sale which were to be contained in the escrow instructions. In these escrow instructions it was provided that the purchase price was $210,000; cash handed the escrow officer, none; cash handed direct to the sellers as earnest money, $5,000; $10,000 payable on or before August 8, 1947; $10,000, to be represented by personal note outside of escrow; assumption of two mortgages totaling $75,507.21; assumption of note to Seaboard Finance Company, approximately $16,895.48 (furniture--note and mortgage); balance of $92,597.31 to be covered by agreement of sale payable at the rate of $1,000 per month. Provision was also made for payment of escrow fee, title fee, mortgage policy, deed, taxes, proration of street-paving liens, proration of Water Users Association assessments, proration of fire insurance, provisions for interest, rents to be adjusted, bill of sale for personalty, and provision for possession on August 8, 1947. At the time plaintiff parted with his $5,000 check, he demanded a receipt from the defendants. This receipt was prepared by the escrow agent, signed by the defendants and delivered to plaintiff; retained by the plaintiff and produced by him at the trial. The receipt was entitled 'Earnest Money Agreement' and acknowledged the receipt of $5,000 as earnest money and part purchase price of the property, for the full purchase price of $210,000, payable as follows:
$ 5,000 by the above deposit, and
$ 20,000 on or before August 8, 1947;
$ 77,000 by mortgage to First Federal
Savings & Loan Ass'n;
$ 16,895 by note to Seaboard Finance
Company; and
$ 91,105 by agreement of sale.
With reference to this receipt, plaintiff gave the following testimony:
At the trial, when asked to produce the check, plaintiff testified that he did not have it with him. When asked why, he answered: He testified that he had not seen the check since it was delivered and didn't know whether the check had been presented for payment to his bank, and did not know whether it had been paid, which testimony of course was patently untrue or he would not have brought the lawsuit.
The transaction in the title company office occurred on Saturday afternoon, at which time the escrow officer told them that he would type out the instructions, contract, etc., on the following Monday morning and mail them to Mr. Gardner at Salt Lake City. The title officer, Mr. N. L. Dumont, was called by plaintiff as his witness. Mr. Dumont testified that: , and that at the request of Mr. Gardner he made out 'this earnest money receipt'. Mr. Dumont also testified that he made the notation in the escrow instructions and in the receipt that the $5,000 had been paid direct to the sellers as earnest money and that no mention of a loan was made in his presence. Plaintiff testified that the defendant Fontana told him that they (sellers) were in arrears on the property and,
'* * * some money had to be forthcoming at once to be able to keep the property in their hands, so that if we proceeded to deal on it further and arrived at a contract which we were going to agree on--was agreed upon, that then the property would be available to deal upon, and----
* * *
* * *
'The nature of the obligation was some payments due on the property, and the money wasn't available to pay them, and so if I would advance some money so that these payments could be kept up, * * * when we got our contract agreed upon, and at that time--* * * At that time I put up five thousand dollars so that these payments could be kept current.' (Emphasis supplied.)
In reference to the receipt plaintiff testified as follows: (Emphasis supplied.)
On July 1st the title company wrote plaintiff that they had forwarded escrow instructions in triplicate and asking for his signature and the return of them. Receiving no response, on July 22d they again wrote and asked for the return of the executed instructions. Some time after this--the evidence does not disclose when--the title company received back their original letter of July 22d, to which was appended in longhand the following remarks:
'Dear Mr. Dodds,
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Meno's Constr., L. L.C. v. Indus. Comm'n of Ariz.
...support the award. A.R.S. § 23-951(B) ; Jenkins v. Indus. Comm’n , 77 Ariz. 377, 386, 272 P.2d 601 (1954) (citing Todaro v. Gardner , 72 Ariz. 87, 91, 231 P.2d 435 (1951) ). "A finding of fact is not clearly erroneous if substantial evidence supports it, even if substantial conflicting evid......
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