Appeal from Superior Court, Pima County; William G. Hall, Judge.
Krucker, Fowler & Dodd, of Tucson, for appellant.
Fred W. Fickett and Wm. S. Dunipace, both of Tucson, for appellees.
Stanford, Chief Justice. La Prade and Morgan, JJ., concur.
Stanford, Chief Justice.
This was an action brought in the superior court to determine by declaratory judgment proceedings the right of litigants under a written contract.
[64 Ariz. 217] We will refer to litigants as designated in the trial court, terming the appellant, plaintiff, and appellees, defendants.
Plaintiff was the owner and operator of a grocery store, meat market and liquor business operated in leased premises in Tucson, Arizona, and having been called into military service assigned his lease, sold the business and merchandise and gave option to buy his liquor license to defendant Rose Soo. Cash was paid for the merchandise, and the fixtures were leased with the premises pending the defendants exercising their option to buy them. A contract between the parties was entered into May 15, 1943, and defendants went into possession. In September, 1944, plaintiff, through his attorney, claiming to have discovered that defendant T. H. Soo was not a citizen of the United States and therefore not a qualified elector of the state, and for other reasons expressed, notified defendants that their permit to operate plaintiff's liquor business was cancelled. Thereafter plaintiff brought his action asking that the contract be cancelled in so far as it related to the liquor license.
In the agreement and in the lease and option entered into are the following pertinent paragraphs.
"The liquor license shall remain in the name of the Seller and shall be managed by Rose Soo who shall have the right to purchase the liquor license for the additional sum of Five Hundred ($ 500.00) Dollars, said right to purchase shall only be effective if and when the option to purchase the equipment is exercised."
"The Lessor hereby designates and appoints B. H. Solot as his Agent in all
matters pertaining to this Lease and all rental payments shall be made payable to and at the office of Solot Realty, 1842 East 6th Street, Tucson, Arizona."
The defendants filed an answer and counterclaim for a decree of specific performance requiring plaintiff, or his agent B. H. Solot, to execute a bill of sale to defendants for the fixtures and equipment involved; for a decree of specific performance requiring plaintiff to transfer by the proper procedure the liquor license involved to Rose Soo and asked that plaintiff be enjoined pendente lite and permanently from removing the liquor license from the premises, and for certain damages. Also defendants alleged tender to the clerk of the court the sum of $ 5600 in full settlement of plaintiff's interest in the business under the agreement referred to.
By the trial court's decree, among other things, Solot was appointed agent of the plaintiff for the purpose of executing certain documents and for the purpose of carrying out the decree and directing the said Solot to execute and deliver to defendant Rose L. Soo the transfer of the liquor license; that the clerk of the court pay unto said Solot the sum of $ 5600; that the court retains jurisdiction of the cause to do any and all things necessary to enforce the decree.
[64 Ariz. 218] The court made findings of fact before the rendition of judgment, and from the judgment rendered the plaintiff brings his appeal to this court.
Among plaintiff's contentions are the following:
"Plaintiff contends the contract dated May 15, 1943 is illegal and void since it is a contract whereby one party is to operate a liquor business under a license issued to another. The contract is also void because it contemplates a transfer of a liquor license without the approval of the State Liquor Department, the County Board of Supervisors and without giving the notices required by law. It is also contended that, Mr. Soo not having been a citizen at the time the ...