OSCAR F. DYKES, Appellant,
CLEM LUMBER COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and case remanded for further proceedings.
Messrs. Dykes & Selden, for Appellant.
Mr. Maurice D. Brown and Mr. T. E. Scarborough, for Appellee.
[58 Ariz. 177] LOCKWOOD, C.J.
This is an appeal by Oscar F. Dykes, called defendant, from a judgment in favor of Clem Lumber Company, a corporation, called plaintiff. The facts of the case may be stated as follows:
[58 Ariz. 178] Grover C. Hamby and Alice S. Hamby, his wife, were the owners of certain real estate situate in Phoenix, upon which they desired to erect a residence. They had arranged with the Valley National Bank for a FHA loan of $3,700 for such purpose and entered into a contract with defendant to build it for the price above stated. Before the bank would pay out any of the money on the loan it was necessary that it have a written security from a responsible party that the building would be completed according to owner's specifications and free and clear of any mechanics' or materialmen's liens. Defendant intended to secure the majority of his material from plaintiff and asked it to make the required security, which it did by letter to the bank which reads, so far as material as follows:
"The Valley National Bank
"Re: Grover C. and Alice S.
"Hamby FHA #02-004222.
"In reference to the mortgage in the amount of $3,700.00 dated March 22, 1940, executed by Grover C. Hamby and Alice S. Hamby, his wife, to The Valley National ...