Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
Judgment reversed, and cause remanded for a new trial.
Theodore G. McKesson and Carl W. Divelbiss, both of Phoenix, for appellant.
Lloyd J. Andrews and John M. Levy, both of Phoenix, for appellee.
Udall, Judge. Stanford, C. J., and LaPrade, J., concur.
[65 Ariz. 292] This action was brought by Robert H. Brazee against George T. Morris for the
specific performance of an option agreement to convey certain lots in the Collins Addition to the City of Phoenix. From a judgment for the defendant and a denial of his motion for a new trial, the plaintiff appeals. The parties will be referred to as they were designated in the trial court.
It is necessary first to consider the sufficiency of the pleadings. The plaintiff alleged that for a valuable consideration the defendant had given him an option to purchase the lots in question which option had been reduced to writing and bore the date January 14, 1943. The defendant by his answer denied the execution of the instrument and for a further separate defense alleged: "* * * that if the name of [65 Ariz. 293] the defendant George T. Morris, also known as G. T. Morris, appears on a purported option in writing to the plaintiff, Robert H. Brazee, that said signature was obtained by fraud and misrepresentations on the part of the plaintiff with no consideration whatsoever."
The plaintiff assigns as error the admission of any evidence by the trial court relative to fraud for the reason that the defendant had failed to allege with particularity the circumstances constituting fraud.
Rule 9(b) of the Rules of Civil Procedure, section 21-414, A.C.A. 1939, states: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. * * *" This is clearly an exception to the general rule that "a party shall state in short and plain terms his defenses to each claim". Rule 8(b), Rules of Civil Procedure, section 21-405, A.C.A. 1939; Reed v. Turner, D.C., 2 F.R.D. 12; Curacao Trading Co., Inc., v. William Stake & Co., D.C., 2 F.R.D. 308; United States v. Hartmann, D.C., 2 F.R.D. 477; Shultz et al. v. Manufacturers & Traders Trust Co., D.C., 1 F.R.D. 53.
The true intendment of this rule relating to the pleading of fraud is well set out in Barnes v. Boyd, D.C., 8 F.Supp. 584, 592, affirmed 4 Cir., 73 F.2d 910: "* * * The mere averment that something is 'fraudulent' is not sufficient. * * * the bill must set forth such acts done or omitted * * *".
Applying these principles to the instant factual situation, however, has not the defendant by his pleadings set forth all the circumstances of fraud or misrepresentation of which he is cognizant? If he does not know how his signature got on the document, neither common sense nor any rules of pleading known to this court would require him to state with particularity how it got there. Evidently this was the view taken by the learned judge for when Mr. Morris took the stand on his own behalf (and as the defense's sole witness) he was, as a preliminary matter, interrogated as to his previous friendly dealings with the plaintiff. Plaintiff's counsel objected stating that this line of ...