Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
V. L. Hash, of Phoenix, for appellant.
Hill, Robert & Hill, of Phoenix, for appellees.
Stanford, Chief Justice. La Prade and Udall, JJ., concur.
Stanford, Chief Justice.
[66 Ariz. 117] Herein we will style the appellant as defendant and the appellees as plaintiffs.
This is an action to require defendant in accordance with his subsequent oral agreement to refund to plaintiffs the balance of a deposit made on the purchase price of real estate. Plaintiffs entered into a written contract dated March 12, 1945, with defendant to purchase certain premises belonging to defendant. The purchase was made through real estate brokers. It appears that the brokers, as well as defendant, promised at the time of purchase that by March 25, 1945, electricity would be available for the house; that a cooking stove would be installed; a refrigerator
furnished; that lighting fixtures on both outside porches would be installed; that water pipe installation was in good condition; and that the entire real property was in a marketable condition. On these representations the plaintiffs moved into the house on the 16th day of March, 1945, but no electricity nor stove was supplied within the time agreed upon; the water pipes were in bad condition, and other items were not in accordance with the promises made by defendant. Thereupon defendant instructed his agents, the realty brokers, to notify plaintiffs that he would prefer to cancel the agreement for them to purchase the property and have the plaintiffs move out and defendant would refund all the money they had paid. To this the plaintiffs consented and did move out, whereupon the realty brokers refunded to plaintiffs the $ 500 which they held of the $ 1,000 paid on the purchase price. This action is to compel the repayment of the balance of $ 500.
The case was tried before a jury and upon verdict rendered in favor of plaintiffs, defendant appealed from the judgment entered and also from the order of the court denying his motion for a new trial.
Defendant submits the following assignments of error:
"1. That the Court erred in refusing to grant the motion of defendant for an instructed verdict.
"2. That the Court erred in admitting any testimony touching the condition of the premises and respecting the failure of the defendant to furnish lights, water, or to complete the construction of the premises, for the reason that it was wholly outside of and ...