HECKMAN et ux.
HARRIS et ux
Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
Reversed and remanded with directions.
Laney & Laney, of Phoenix, for appellants.
Hill, Robert, Hill & Price, of Phoenix, for appellees.
Beauchamp, Superior Judge. La Prade and Udall, JJ., concur. Note: STANFORD, C. J., being ill, the Honorable Edwin BEAUCHAMP, Judge of the Superior Court of Maricopa County, was called to sit in his stead.
This is an appeal from a judgment that the plaintiffs take nothing by their complaint to quiet title, and that the plaintiffs convey the premises to the defendants in accordance with the terms of certain escrow instructions. The facts are substantially [66 Ariz. 361] as follows: On September 12, 1945, James J. Heckman and Ella Heckman, his wife, appellants and plaintiffs below, owned as community property a vacant lot on East McDowell Road in the City of Phoenix. On this day Ella Heckman, without the knowledge or consent of her husband, went with a duly authorized agent of the defendants, Ira E. Harris and Marjorie Ann Harris, his wife, appellees and defendants below, to a title company in Phoenix and there signed ordinary Escrow Instructions for the sale of this property to the defendants. The martial status of Mrs. Heckman and the community character of the property were known to the agent. Mrs. Heckman made it understood that the Escrow Instructions would have to be signed by her husband and the instructions so provided. In anticipation of Mr. Heckman's signing the Escrow Instructions the agent of defendants signed them and deposited with the title company the $ 3,000 agreed purchase price. When the Escrow Instructions were brought home for his signature, however, Mr. Heckman refused to sign them or to agree to the sale.
Several days after this trip to the title company Mrs. Heckman told the agent of the defendants that her husband had refused to sign; and, for the first time, told
him that she and her husband had some five months before entered into another contract relating to the property that in her husband's opinion prevented the sale to the defendants. This was a written contract with one Lillian O. Olsen, a widow who owned a drug store near this vacant lot. Mrs. Olsen agreed therein to loan money for the construction of a business building that the Heckmans agreed to erect on the property. The Heckmans, among other things also agreed to pay interest on the loan and to restrict the use of the building against its use as a drug store for a period of 10 years. Even though Mrs. Heckman had known for some time before signing the Escrow Instructions that the defendants were purchasing the property for the very purpose of building a drug store on it, this was the first time she disclosed the information regarding the Olsen Agreement to the defendants or their agent. Notwithstanding the knowledge of the existence and terms of this contract with Mrs. Olsen, however, the defendants were still anxious to complete the purchase. On September 21, 1945, after both sides had sought and obtained legal advice, the parties signed and acknowledged what may be called as Indemnity Agreement. This agreement was neither attached to the Escrow Instructions, nor did it make specific reference to them; but it contains the following provisions:
"Whereas, second parties desire to sell and first parties desire to purchase the said real estate, and the said parties have agreed upon the amount of such purchase price and the terms of such sale.
[66 Ariz. 362] "Now, therefore, for the purpose of protecting and saving harmless the said second parties from any claims from said Lillian O. Olsen, arising out of the said contract and agreement, and in consideration of the sum of One Dollar ($ 1.00) paid first parties by second parties, first parties do hereby agree to indemnify and hold harmless second parties, their heirs, executors and administrators, from any and all claims which may now exist against second parties or may hereafter accrue under the terms of said agreement between second parties and the said Lillian O. Olsen."
Soon thereafter plaintiffs refused to go ahead with the sale and requested defendants to give them a quitclaim deed to remove the cloud on their title. This the defendants refused to do and plaintiffs filed in usual form a quiet-title action. In their answer the defendants contended that the plaintiffs had contracted to sell the property to them. Their cross-complaint prayed for specific performance. Plaintiffs in their answer to cross-complaint denied the making of any valid agreement of sale and asked that the title be quieted in them. The case was tried before the court and a decree was entered that the plaintiffs take nothing by their complaint and that the plaintiffs convey the premises in accordance with the terms of the Escrow Instructions. The plaintiffs' appeal is from the judgment and the order overruling the motion for a new trial.
The court made no findings of fact or conclusions of law and the plaintiffs have made seven assignments of error attacking the various theories upon which the court may have predicated the judgment. The defendants in their brief, however, contend that many of the issues thus created are inapplicable because: "* * * the theory, upon which the lower court based its decision, is that of an estoppel; estoppel of ...