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Clark v. Adams

Supreme Court of Arizona

November 30, 1931

C. R. CLARK, Appellant,
PAUL F. ADAMS, Appellee

APPEAL from a judgment of the Superior Court of the County of Apache. A. S. Gibbons, Judge. Judgment affirmed.

Mr. Dodd L. Greer, for Appellant.

Mr. Isaac Barth, for Appellee.


Page 414

[39 Ariz. 258] LOCKWOOD, J.

Paul F. Adams, hereinafter called plaintiff, brought suit against C. R. Clark, hereinafter called defendant, to recover a commission which plaintiff claimed he had earned as a licensed real estate broker by reason of securing a purchaser for certain property of defendant. The case was [39 Ariz. 259] tried before the court, which rendered a judgment in favor of plaintiff for the amount prayed for, and after the usual motion for a new trial was overruled, this appeal was taken.

The evidence, taken in the strongest manner in favor of plaintiff, as we must take it under the judgment of the trial court and the oft-repeated rule of this court in such circumstances, shows the facts to be as follows: About August 1, 1930, defendant was the owner of certain property situated in Apache county, and plaintiff was a duly licensed real estate broker in Phoenix, Arizona. Defendant employed plaintiff to sell for him the property in Apache county, and the latter thereafter found a buyer in the person of one W. G. Matley, who owned some property in Tempe, Arizona. On the second day of August defendant and Matley met and entered into a written agreement for the exchange of their property, which agreement was signed by defendant and his wife, and by Matley, and which expressly provided that defendant should pay plaintiff a commission of $775. Shortly thereafter defendant declined to complete the deal, and this suit was brought.

The foregoing facts are undisputed. Defendant, however, in his answer and in his testimony at the trial, claimed that he had executed the agreement subject to a confirmation or rejection by telegraph, and that in due time he rejected it. Copies of the agreement produced at the trial did show this condition written therein. Matley and several other witnesses who were present at the execution of the agreement testified, however, that at the time it was signed by defendant and Matley such condition did not appear therein, but that it was added subsequently thereto by defendant without Matley's knowledge or consent, and the trial court by its judgment evidently accepted the testimony of Matley's as true, [39 Ariz. 260] and following our oft-repeated rule, we must also so accept it.

There are six assignments of error which we will discuss in the order which seems advisable. The first is that although the case was tried in Apache county where defendant resided, the complaint was entitled "In the Superior Court of Maricopa County." The record was conclusive that the suit was actually commenced in Apache county, that all the other pleadings were entitled "In the Superior Court of Apache County," and that it was never suggested during the trial that the venue was improperly laid in the complaint. We think it is obvious that the mistake in the caption of the complaint was purely a clerical one, and the error is too technical and trivial to require any consideration, since no one was misled thereby.

The second assignment is that the court erred in admitting Plaintiff's Exhibit No. 1, being an agreement listing defendant's property for sale and stating the amount of the commission, on the ground that the plaintiff herein was Paul F. Adams individually, while the agreement referred to was signed "Paul F. Adams & Co." The agreement referred to was not the one upon which the suit was based. It was offered merely for the purpose of showing an employment to sell, and we think was admissible for this purpose. But even if the admission were erroneous, it could not have prejudiced the defendant, for he admitted the employment of plaintiff, and the amount of commission agreed to be paid. The agreement of exchange between defendant and Matley contains the specific promise by defendant to pay Adams personally the commission of $775. This disposes also of the fourth assignment of error, to the effect that it appears that plaintiff was not the real party in interest.

Page 415

[39 Ariz. 261] The third assignment of error is that the court permitted counsel for plaintiff to make a purported statement of facts over the objection of the defendant during the progress of the trial. We have examined the statement, and think it a proper one for an attorney to make to the trial court as an explanation of his theory of the case. Certainly defendant could not have been prejudiced thereby.

The sixth assignment of error is that the court allowed counsel to intimidate defendant while he was on the witness-stand. We have carefully examined the portion of the reporter's transcript which it is alleged sustains this assignment, and are of the opinion that it is not justified by the record.

The fifth assignment is the general one that the judgment is contrary to law, and is presumably based on the others. Under this there is presented the only question in the case worthy of serious consideration. Two of ...

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