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Cress v. Switzer

Supreme Court of Arizona

June 26, 1944

L. W. CRESS, Doing Business as CRESS BROTHERS, Appellant,
v.
JEAN N. SWITZER and SADYE BEARD, Appellees

APPEAL from a judgment of the Superior Court of the County of Coconino. H. K. Mangum, Judge. Reversed and remanded.

Mr. H. C. McQuatters, for Appellant.

Messrs. Wilson, Compton and Wilson, for Appellees.

OPINION

Page 87

[61 Ariz. 406] STANFORD, J.

In the Superior Court of Coconino County the appellees filed their action asking judgment for the possession of Lot 16, Block 4 of the City of Flagstaff, as surveyed and platted by H. C. Nutt, trustee for the Atlantic and Pacific Railroad Company, together with the improvements thereon. The complaint alleged that appellant prior to June 30, 1942, was in possession of the property as a tenant of appellees, the owners, by a month to month lease. Notice of termination of the month to month lease and the demand to surrender possession was given appellant June 12, 1942.

In answering, the appellant admitted ownership in the appellee, but denied the right of possession, and alleged that improvements of approximately $700 value had been expended by him in the way of certain [61 Ariz. 407] installations and alterations on the premises, besides the installation of counters, equipment and fixtures to conform to the building, and the same were made because of the terms and provisions of a verbal agreement entered into between the parties substantially as follows:

"Plaintiffs agreed to let said premises to defendant for a term of five (5) years, commencing August 1, 1938, ending July 31, 1943, granting defendant the option to renew said lease for an additional period of five (5) years. Defendant in consideration of the letting of said premises agreed to pay to plaintiffs the sum of sixty dollars ($60.00) per month, as rental therefor, and to abide by all the usual covenants, obligations, and duties usually incorporated in a lease of similar business property in the City of Flagstaff."

That the installations and alterations performed by the appellant were in reliance on the verbal agreement and in reliance on the promises of appellees that the agreement would be reduced to writing at an early date, which promises were repeated many times.

By reply to the answer of appellant, appellees pleaded Section 58-101, Arizona Code Annotated 1939, Statute of Frauds.

"No action shall be brought in any court in the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the parties to be charged therewith, or by some person by him thereunto lawfully authorized:

"6. Upon an agreement for the leasing for a longer period than one (1) year,...."

Also appellees, at the same time, filed a motion for summary judgment on the pleadings based on our code, and it is from the granting ...


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