JOHN ERNST and M. ERNST, His Wife, Appellants,
HENRY DEISTER and MARTIN DEISTER, Copartners, Doing Business Under the Name and Style of THE FARMERS LUMBER & WRECKING CO., Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions.
Messrs. O'Sullivan & Morgan and Mr. I. J. Lipsohn, for Appellants.
Mr. John C. Lee and Mr. Harold Baxter, for Appellees.
[42 Ariz. 380] ROSS, C. J.
Henry Deister and Martin Deister, copartners, doing business under the name of the Farmers Lumber & Wrecking Co., and their assignors, furnished labor and materials to one J. W. Wilson, Jr., to construct a residence upon lot 4, Casa Bella tract, Maricopa county, and, not receiving payment therefor, a mechanic's lien was filed against said lot, which they later foreclosed. The lot was sold under such judgment of foreclosure and the plaintiffs were the purchasers at said sale. Claiming that, by virtue of said lien foreclosure, sale, and purchase, they succeeded to the rights of Wilson, they commenced this suit against John Ernst and his wife to compel them to specifically perform a contract the latter had entered into with the Union Title Insurance & Trust Company, as trustee, in words and figures as follows:
"November 17, 1930
"Union Title Insurance & Trust Co., 144 West Washington Street, Phoenix, Arizona.
"Gentlemen: On November 10th I purchased at my mortgage foreclosure sale all of the 39 lots in Casa Bella Tract, Maricopa County, Arizona, which were included in the mortgage of A. R. Taylor and wife to me. Sheriff's Certificate of sale has been issued to me. I understand that you are now the record owner by reason of deed from Mr. Taylor to you, of all the lots which were included in my said mortgage, and that you are anxious to arrange matters so that lots, 2, 4, 6, 7, 8 & 9, in said tract can be released from the Sheriff's Certificate by the payment to me of a certain stipulated amount for each lot so released.
[42 Ariz. 381] "This is to advise you, therefore, that we will from time to time, as requested by you in writing, assign and transfer our rights under said Sheriff's Certificate of sale, in respect to said lots 2, 4, 6, 7, 8 & 9, or any one or more of them, upon the payment to our attorney I. J. Lipsohn, of Phoenix, Arizona, for our benefit, of the sum of $760, for each and every of said lots so requested to be released from said Sheriff's Certificate of sale.
"It is expressly understood that this agreement on our part to release, as aforesaid, stands in force and effective, only during the period of five months from and after the date of this communication, and provided that at least one of said six lots shall be so paid for and released within forty five (45) days from the date hereof.
"JOHN ERNST and
"MRS. M. ERNST his wife."