LUCY M. FINK, Appellant,
STANLEY WILLIAMSON, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Evo De Concini, Judge.
Messrs. Darnell & Robertson, for Appellant.
Mr. Clifford R. McFall, for Appellee.
Stanford, C. J. Morgan, J., concurs. LaPrade, J. (dissenting).
Stanford, C. J.
[62 Ariz. 380] This is an appeal from the superior court. No findings of fact were made, but before judgment the court rendered an opinion setting forth the views of the court on different phases of the case.
We will refer to the parties as plaintiff and defendant as designated in the trial court.
Plaintiff was a duly licensed real estate broker in Tucson, Arizona, and defendant was the owner of the property involved. Plaintiff, the broker, showed the property of defendant to a Mr. and Mrs. Samuel E. Hostetter on March 10, 1942. The defendant was temporarily in Los Angeles, California. After showing the property to the Hostetters, plaintiff sent the following telegram to defendant:
"Mrs. Albert Fink -- c/o Mrs. F. A. Price
"c/o Gaylor -- Wilshire Blvd.
"Los Angeles, Calif.
"Have shown Mr. Hostetter prospective buyer your 10 1/2 acre and residence Oracle Road property. Please [62 Ariz. 381] answer return wire Western Union collect authorizing me to sell, giving lowest cash price including regular real estate board commission. Please state furnishings that go with property.
"Stanley Williamson -- Broker"
That same evening, March 10th, the defendant wired the plaintiff as follows:
"March 10, 1942
"Stanley Williamson, Broker
"I authorize Mr. Williamson, Broker, the right to sell my ten and half acre estate in Palosverdes for Thirty Two Thousand Dollars for cash No furnishings included at this figure however would consider selling many things reasonable. Property has clear title.
"Mrs. Albert Fink."
When plaintiff received an answer to his telegram from defendant he telephoned Mr. Hostetter that he had received a wire from her and that she wanted $ 35,000 for the property furnished.
After plaintiff had shown the Hostetters the property during the day of March 10th, Mr. Hostetter went immediately to the office of the Arizona Trust Company, in Tucson, and started negotiations there with Mr. R. A. Schendel, a realtor salesman, for the purchase of the property. The original figure submitted to Schendel was the same as the one submitted to Williamson. Mr. Schendel talked that evening with defendant by telephone, but defendant claims that she did not know that Hostetter was Schendel's customer, and the defendant after negotiations and reduction in price closed the deal with Schendel for the property to be purchased by his customer. Defendant returned to Tucson March 19th, and signed a preliminary agreement on March 21st in the office of the Arizona Trust Company.
Williamson continued negotiating with the Hostetters, and under his testimony it is shown that he saw [62 Ariz. 382] them several times during the week he first showed them the property and gave them information they wanted. We take the following from his testimony:
"Q. Did you see them again after that? A. I saw them the next day, Friday.
"Q. And did you give them any further information at that time? A. I talked to them again about the property at the hotel. They said that they definitely dropped the matter of buying a piece of property in Tucson, weren't interested in the Fink property; that 'we are going back to Kansas, and packing up and getting ready to go; if we want any more information that we will contact you.'"
On March 24th, after plaintiff had heard that defendant had sold her property to the Hostetters, he wrote her a letter and demanded his commission for the sale.
The trial court entered its judgment in favor of the plaintiff and against the defendant in ...