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Onekama Realty Co. v. Carothers

Supreme Court of Arizona

October 13, 1942

ONEKAMA REALTY COMPANY, a Corporation, Appellant,
v.
JOHN B. CAROTHERS and LOTTIE GRACE CAROTHERS, his wife, Appellees

APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.

Mr. John A. Bruning, for Appellant.

Mr. L. E. Holladay, for Appellees.

OPINION

Page 919

[59 Ariz. 417] LOCKWOOD, C.J.

John B. Carothers and Lottie Grace Carothers, husband and wife, plaintiffs, brought suit against Onekama Realty Company, a corporation, [59 Ariz. 418] defendant, and others, to cancel a certain option contract of sale, to declare all sums paid on said contract awarded to plaintiffs as and for liquidated damages for breach of contract, that plaintiffs be declared to be the owners of the premises involved in the contract, and other minor relief. Defendant answered claiming that it was the owner of the land in question, praying that a certain promissory note described in the pleadings be declared paid, and that plaintiffs take nothing by their complaint.

The case was tried to the court without a jury, and judgment was rendered substantially as prayed for in the complaint, with the exception that there was a prior lien of another defendant through a tax certificate. Thereupon the named defendant appealed. The record shows that considerable oral testimony was given, but no transcript thereof was included in the record on appeal. We must therefore, assume the findings of the trial court are correct. Wooster v. Scorse, 16 Ariz. 11, 140 P. 819; Ensign v. Koyk, 31 Ariz. 1, 250 P. 246. The findings of fact in and of themselves are not sufficient to show a complete picture of the situation, so our statement is based upon such findings, the admission of the parties and the pleadings taken together, and construed as strongly in favor of plaintiffs as is reasonably possible.

In 1913 the land which is the subject matter of this action was part of the public domain of the United States. On August 1, Philip Contzen, who was the vice-president of Catalina Water and Power Company, an Arizona corporation, hereinafter called the company, entered into an agreement with one Lillie B. Andrews, by the terms of which she granted an option to the company to purchase the land in question. This agreement, so far as material to the present case, reads as follows:

[59 Ariz. 419] "THIS AGREEMENT, made the first day of August, 1913, between Lillie B. Andrews, of Tucson, Pima County, Arizona, the party of the first part, and Catalina Water and Power Company, a corporation of Tucson, aforesaid, the party of the second part.

"Whereas, the party of the first part has scripped, with Navajo Base Scrip -- (certain lands described, being the subject matter of this suit).

"...

"Whereas, the party of the first part has agreed to give the party of the second part the right to purchase all of the said lands above described at any time within

Page 920

two years from the date hereof for the sum of three thousand dollars, will interest thereon from the date hereof until payment, at the rate of eight per cent per annum, such ...


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