RICHARD A. BUSH, Appellant,
CHARLES A. MATTINGLY, d. b. a. MATTINGLY REALTY COMPANY, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.
Judgment reversed and remanded with directions.
Messrs. Jennings & Tenney, for Appellant.
Mr. Terrence A. Carson, for Appellee.
LaPrade, J. Stanford, C. J., and Morgan, J., concur.
[62 Ariz. 484] This is an appeal from an order of the Superior Court granting defendant's motion for a new trial. The appellant, plaintiff below, was successful in securing a verdict and judgment in the lower court. The parties will be referred to as they appeared in the lower court -- plaintiff and defendant. The plaintiff was a real estate salesman employed in the office of the defendant, who was a real estate broker. Plaintiff in his complaint alleged that he had earned certain commissions as a salesman for the defendant, which the defendant denied. The complaint, among other things, alleges that it was verbally agreed between the said parties "that said plaintiff should take charge of sales and transactions pertaining particularly to farm lands, and verbally agreed to pay to the plaintiff upon and at the time of the consummation of any sale of farm lands upon which the plaintiff participated as a real estate salesman one-half of sales commissions earned and paid to the defendant by the owners or purchasers of said lands sold." Subsequent to the filing of the answer, defendant secured permission from the court to file a motion to dismiss plaintiff's complaint. The ground of the motion was that the contract sued upon was an oral contract and within the statute of frauds. The section relied upon is Sec. 58-101, Arizona Code Annotated 1939, which in part reads as follows:
"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:
. . .
[62 Ariz. 485] "7. Upon an agreement authorizing or employing an agent or broker to purchase or sell real property, or mines, for compensation or a commission; or, . . . ."
Before the trial court had an opportunity to rule on this motion, counsel for plaintiff secured leave to file an amended complaint and did so by adding a count in quantum meruit for the reasonable value of his alleged services. After presentation of the motion, the court granted the motion to dismiss as to the first cause of action, being the count upon the express oral contract, and denied the motion as to the second cause of action, being the count on quantum meruit.
The case was tried to a jury and resulted in a verdict in favor of the plaintiff in the sum of $ ...