APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed, with directions.
Mr. Carl R. Tisor and Messrs. Richey & Richey, for Appellant.
Messrs. Conner & Jones, for Appellee.
[38 Ariz. 169] ROSS, J.
This action was brought by the T. C. Triplett Building Company, hereinafter referred to as plaintiff or building company, against Robert Nardelli, to recover brokerage commissions. Judgment went for the plaintiff, and defendant appeals.
In the amended complaint the plaintiff is described as suing "as trustee of an express trust for H. M. Jacobs, Frank Stockton, and itself." The subject matter, its location, the contract, and services rendered are averred in count 1 of said amended complaint as follows:
"That heretofore and on or about March 14, 1929, the defendant was the owner of a lease of the Heidel Hotel in said city (Tucson) and of certain hotel furniture and equipment therein; that on said day he listed the said property with this plaintiff for sale and the plaintiff and the defendant then and in the city of Tucson entered into a contract whereby it was agreed that if the plaintiff secured a buyer of the said lease and property for the price of $20,000, or any price defendant might accept therefor, he, the [38 Ariz. 170] defendant, would pay to the plaintiff a commission of ten per cent. of such purchase price.
"That thereafter, this plaintiff did interest, produce and secure a buyer of said lease and property, to-wit, one J. W. Ellis and his wife, who did on or about the 8th day of June, 1929, purchase the same from the defendant for the sum of $18,000. . . .
"That the said H. M. Jacobs and Frank Stockton performed services in and about the procuring of said purchaser and it was agreed between them and the T. C. Triplett Building Company that they should own the
said commission jointly and that each should have an undivided one-third interest therein."
In a second count the rate of commissions is upon a quantum meruit; otherwise the facts are the same.
At the close of plaintiff's case and at the close of the whole case defendant moved for an instructed verdict on the ground that plaintiff had failed to prove any trust as between defendant Nardelli and plaintiff, or as between defendant and Jacobs and Stockton. The denial of this motion is assigned as error. It is to be noted that the contract alleged is between the building company and Nardelli; also that the building company procured the buyer of the property. Jacobs and Stockton were not parties to the contract, and it does not appear that such contract was made or entered into by the building company for their benefit. The building company was not "a trustee of an express trust" for Jacobs and Stockton nor authorized, under section 3727 of the Revised Code of 1928, to bring suit on such contract for their benefit. Under the contract the building company alone was authorized to sell defendant's property, and to it only was it agreed to pay commissions. While it is alleged that Jacobs and Stockton performed services in procuring purchaser, since they had no contract with defendant their only authority to render such services must have been derived from the building company; and, likewise, if [38 Ariz. 171] they are to be compensated for such services, it must be by the building company, and not by defendant. The latter is unconcerned as to the private understanding or agreement between the building company and Jacobs and Stockton that they would split the commissions in three ways, one-third to each.
Under the contract alleged and, we assume, the one proven since no question on that point is made, the only proper party plaintiff was the building company for its sole benefit. However, we cannot see how defendant was or could have been injured by the allegation that plaintiff was suing in the capacity of "trustee of an express trust for H. M. Jacobs, and Frank Stockton, and itself," since upon the face of the complaint it is clearly shown that the contract was with the plaintiff and that "plaintiff did interest, produce and secure a buyer," etc. We think the allegation of which complaint is made can and should be treated as mere ...