W. E. LA FON, Appellant,
R. J. MARTIN, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. Henderson Stockton and Mr. S. N. Karam, for Appellant.
Mr. H. S. McCluskey and Mrs. E. G. Monaghan, for Appellee.
[56 Ariz. 411] LOCKWOOD, J.
This is an appeal by W. E. La Fon, defendant, from a judgment in favor of R. J. Martin, plaintiff. The facts in the case may be stated as follows: Ackel Investment Company, hereinafter called the company, was at the times mentioned herein the owner of certain premises in Phoenix, Arizona, known as the Jefferson Hotel. It had on September 14, 1936, leased said premises to defendant for a term of years expiring on September 14, 1941. The lease provided, among other things, as follows:
"5. The lessee has deposited with the lessor the sum of Two Thousand Five Hundred ($2,500.00) Dollars, the receipt whereof is hereby acknowledged, and has also made, executed and delivered his five (5) promissory notes, payable to the lessor, or its order, in the sum of Five Hundred ($500.00) Dollars each,... which sum is to be held by the lessor as partial security for the faithful payment of all sums due hereunder and the performance of all agreements by the lessee herein agreed to be by him performed, and the said sum may be applied by the lessor to the payment of any rent remaining unpaid or damage sustained by reason of the breach of any agreement herein contained and to be performed by the said lessee, and if not so applied, shall remain as such security and will be applied by the lessor for the payment of the guaranteed minimum rental on the demised premises as follows: ..."
This deposit had been duly made by defendant.
[56 Ariz. 412] On March 10, 1938, plaintiff and defendant entered into a certain option contract for the assignment of the leased premises above referred to, the material parts whereof read as follows:
"Whereas, the said party of the first part is desirous of selling and assigning all of his right, title, interest, claim or demand, in and to that certain lease made and executed by Ackel Investment Company to W. E. La Fon, dated September 14, 1936, beginning on September 15, 1936, and extending to and including September 14, 1941, and covering the following: (herein description of property)...
"Whereas, under and by virtue of the terms of said lease the lessee therein may not sublet or assign said lease without the consent of the lessor therein; and
"Whereas, the said party of the second part is desirous of obtaining said above described lease, and to that end will secure the written consent of the said lessor therein or his assigns,
"Now therefore, for and in consideration of the sum of five hundred dollars ($500.00), the receipt whereof by first party is hereby confessed and acknowledged, the said party of the first party has this day given an option unto the said party of the second party to purchase from the said party of the first part all of his right, title, interest, claim or demand in and to the lease hereinabove described....
"It is mutually understood and agreed that said party of the second part shall have the exclusive right and option to close said option at any time within 23 days from the execution hereof, and said party of the first part hereby agrees that he will, at any time before the expiration of said option, execute and deliver to said party of the second part or to any person named by said party of the second part, upon demand made therefor by said party of the second part, a good and sufficient assignment to said party of the second part of all of the right, title interest, claim or demand of the said party of the first part in and to said lease hereinabove described and every part thereof.
"It is further mutually understood and agreed that for and in consideration of the execution of said assignment of interest by the said party of the first part, [56 Ariz. 413] as aforesaid, the said party of the second part will pay to the said party of the first part the sum of five thousand dollars ($5,000.00), on the following terms and conditions: (terms follow)."
Plaintiff paid to defendant the sum of $500 as set forth in the option, and took the matter of consent up with the company. On ...