APPEAL from a judgment of the Superior Court of the County of Pima. Evo De Concini, Judge.
Messrs. Krucker, Fowler & Dodd, of Tucson, Arizona; Mr. Jerome P. Herst, of San Francisco, California, on brief, for Appellant.
Mr. Harry O. Juliani, for Appellee.
Stanford, C. J. LaPrade and Morgan, J. J., concur.
Stanford, C. J.
[62 Ariz. 312] Harry Solomon was the plaintiff in the action brought in the superior court. Samuel Solomon and Lawrence J. Berry were the defendants. The case was dismissed as to Berry. We shall style the Solomons as plaintiff and defendant as designated in the trial court, although by reason of the appeal they are appellant and appellee.
The case was tried by the court without a jury. The judgment was rendered for defendant, Samuel Solomon, and plaintiff, Harry Solomon, has appealed.
In 1938 at Tucson, Arizona, defendant conveyed to Lawrence J. Berry an undivided one-half interest in and to certain real estate holdings in Pima County, Arizona, mainly located in and about Tucson, all of which property stood in the name of Samuel Solomon. Thereafter Lawrence J. Berry brought an action asking that he be awarded the whole of the real property held by Samuel Solomon, and plaintiff then filed this action to establish in his favor a trust on the property held by defendant. In the first case Berry was the plaintiff and Samuel Solomon and Harry Solomon were the defendants. In the Berry case the judgment of [62 Ariz. 313] the trial court was to the effect that he was not entitled to the relief asked, Berry having theretofore been given a deed to a one-half interest in the property involved. Berry thereupon appealed his case, and this court on May 10, 1943, rendered its opinion as set forth in Berry v. Solomon, 60 Ariz. 333, 137 P.2d 386, in which opinion the judgment of the trial court was affirmed.
For a better understanding of the present case, we quote the following from the judgment in the trial court in the case of Berry v. Solomon, supra:
"It is Ordered, Adjudged and Decreed that the defendant Samuel Solomon is entitled to one-half undivided interest, subject to the interest of Harry Solomon, if any; and Lawrence J. Berry is entitled to one-half undivided interest, and title is hereby vested in each of them in equal undivided shares as above set out, . . . ."
The defendant first came to Tucson from New York in 1931, returning to New York in 1933. He came to Tucson again in 1934. Before coming from New York the first time he was interested with plaintiff in the novelty business and when he went to Tucson the second time he opened a novelty store.
In the summer of 1935 defendant wrote plaintiff, who was in New York, that he had on hand about $ 750, proceeds of sale of ...