JACOB et al.
Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Judgment affirmed on condition of remittitur.
Lewkowitz & Wein, of Phoenix, for appellants.
Wilmot W. Trew, Stockton & Karam and Emmett R. Feighner, all of Phoenix, for appellee.
Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.
[67 Ariz. 111] Abdoo H. Jacob, one of the appellants, was the sole owner of certain property located at 1924 East Van Buren St., described as Lots 1, 2, 3, and 4 of Block 1, Montezuma Place, this being an addition to the City of Phoenix, then in use as an auto court. The permanent improvements thereon consisted largely of four tourist court cabins, two houses (one referred to herein as the "brown house" and the other as the "white house"), and a gas station. One of the lots was used to carry on the business of buying and selling house trailers and on one corner privately owned trailers could be parked for a rental charge. On October 27, 1945, Jacob entered into a written agreement with the appellee, Glenn E. Miner, to sell all of said property to the latter for the sum of $ 32,500, possession to be given on December 1, 1945. Pursuant to the agreement, $ 500 earnest money was then paid, and on December 1 a payment of $ 11,500 was made in cash and two notes ($ 3,000 due January 10, 1946, and $ 17,500 [67 Ariz. 112] due on or before three years from January 10, 1946) were executed and delivered.
The seller having failed to deliver possession on December 1, 1945, as agreed upon, of either the "brown house" or the "white house", the purchaser shortly thereafter brought an action for forcible detainer to obtain complete possession of the premises. The parties will hereafter be referred to as they were in the lower court, Miner as plaintiff and Jacob et ux. as defendants.
We deem it unnecessary to detail the pleadings and the various amendments thereto. Suffice it to say that the case went to trial on plaintiff's first amended complaint (containing three entwined causes of action), wherein he sought to recover; (a) possession of the "brown house"; (b) damages in the sum of $ 11,200 for failure of consideration due to nondelivery of the
"good will" and other personal property, as well as punitive damages because of the wilful, wanton, and intentional acts, words, and conduct of defendant Jacob; and (c) damages in the sum of $ 25,000 for loss of earnings in plaintiff's other business. Defendants also sought damages against plaintiff on an amended cross-complaint. The court summarily directed a verdict in favor of plaintiff on the forcible detainer matter covered by the first cause of action, and by their other verdicts the jury found against defendants on their cross-complaint and in favor of plaintiff on his second and third causes of action. Judgment was entered in accordance with the verdicts, and from this judgment and an order overruling defendants' motion for a new trial, this appeal was taken.
It is now urged that this action having been originally brought in forcible detainer it was error for the court to permit amendment of the pleadings to encompass damages for breach of contract, etc., citing our ruling in Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394. The principle contended for is correct, but as we said in the case of Neyens v. Donato, 67 Ariz. 1, 188 P.2d 588, it is of no avail to defendant because one who has participated, as he did, without objection, in the trial of such issues even filing a cross-complaint of his own, cannot now be heard to complain. Furthermore a question not presented to the trial court cannot be raised for the first time on appeal. City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178, 102 A.L.R. 837.
Defendants (appellants) present fourteen assignments of error and ten supporting propositions of law. The legal questions thus raised together with such additional facts as may be found necessary to a determination of this appeal will be set forth as we proceed.
One of the grounds urged as a basis for a new trial was the uncontroverted fact that one of the jurors, who later became their foreman, made a short visit during the trial to the auto court here in question. By appropriate assignments it is now contended [67 Ariz. 113] that where a juror makes an unauthorized visit to the premises in litigation such act constitutes misconduct which would compel a trial court to grant a new trial.
There is no hard and fast rule governing such matters, as each occurrence must be judged upon the circumstances of the particular case. Much must necessarily be left to the discretion of the trial court as it is in a better position than is the appellate court to determine the effect of the irregularity upon the result of the trial. Tunmore v. Macleish, 45 Cal.App. 266, 187 P. 443. See also 46 C.J., section 101, page 143, and 39 Am.Jur., New Trial, section 78, page 91 et seq.
In the case of Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30, a juror had visited the scene of the accident during the trial of a personal injury case for the purpose of determining whether the testimony given in regard to the visibility at such place was correct. While we branded the conduct of the juror as being highly improper, we held that the refusal of the trial court, under the circumstances there shown, to grant a new trial was not reversible error, citing two criminal cases, Lawrence v. State, 29 Ariz. 247, 240 P. 863 and Sam v. State, 33 Ariz. 383, 265 P. 609, in support thereof. Here it was more the past conduct of the parties rather than the physical condition of the premises, at the time of trial, that was the important factor in the law suit; hence, we cannot say the prejudice to the defendant seems affirmatively probable by reason of the improper visit of the juror. There is nothing in the numerous affidavits submitted on the motion for a new trial to indicate that the juror was in any way prejudiced or influenced by the fact that he drove by and for approximately 10 or 15 minutes examined the premises; there is no showing that he conversed with his fellow jurors about his unauthorized visit. In view of the fact that the verdict was unanimous and the experienced and learned trial judge, by denying the motion for a new trial, determined that no prejudice had resulted, we are not disposed to disturb his ruling. Another factor enters into our ruling; i. e. the defendants by their affidavits establish that they knew of the visit of the juror now complained of
before the trial of the case was concluded and yet failed to report the same to the court. Evidently they chose to gamble upon any effect the juror's inspection might have on a verdict, and after it was adverse for the first time in their motion for a new trial they apprised the court of the juror's misconduct in their effort to overturn the jury's verdict. Such laxness should not be rewarded. The trial court did not commit prejudicial error or abuse its discretion in denying defendants' motion for a new trial.
Defendants by their cross-complaint sought possession of the "white house" and damages in the sum of $ 5000 for the withholding of same. The cross-complaint was grounded upon the provisions in the agreement [67 Ariz. 114] giving defendant Jacob an option (which he later attempted to exercise) to rent the "white house" and the adjoining vacant lot where his business of buying and selling house trailers was carried on. The uncontradicted evidence adduced at the trial showed that one Cherry was occupying the "white house" when the contract of sale and purchase was entered into and at all times thereafter, though this occupancy was not known to plaintiff when he signed the agreement. Cherry refused to surrender possession of this house until defendant Jacob made settlement with him, which settlement apparently had not been made up to the time of trial. When defendant (cross-complainant) attempted to prove his losses as a result of not being given possession of the "white house", the court sustained the objection of plaintiff (cross-defendant) to such evidence. This issue was withdrawn from the consideration of the jury by the court's instructing them as follows: "With respect to the damages for loss of use of the white house, ladies and gentlemen, you are instructed that under the terms of the deed and of the agreement, which I spoke to you about a few moments ago, it was the duty of Mr. Jacob to turn over to Mr. Miner such possession of those premises, including the white house, as would enable Mr. Miner to comply with his option agreement to lease the same to Mr. Jacob, and under all the evidence in this case, there being no dispute in the evidence upon that point, such possession was not given to Mr. Miner, and therefore Mr. Jacob cannot recover any damages for the loss of the use of the white house.'
The ruling that defendants were entitled to recover neither possession of the "white house" nor damages for being deprived thereof is assigned as error. We believe the trial court properly held that it was defendant's duty first to deliver possession of the white house to plaintiff before he could claim under his option a right to possession of said premises, or claim damages for not being given its possession. To hold otherwise would permit defendant to avoid full performance of the vendor's obligation to convey as contained both in his agreement and the deed of conveyance. Nor do we believe that under the circumstances of this case the fact that defendant paid rental to plaintiff for the white house waived the condition precedent or his breach of the contract. The rule announced in the case of Pima Farms Co. v. Fowler, 32 Ariz. 331, 258 P. 256, syl. #1, is not apropos to this situation. Up to the time of trial the plaintiff had been deprived of possession of both the "brown house" and the "white house". There is no merit to this assignment.
Defendants attack the verdict and judgment, for damages in the sum of $ 2200, returned and granted upon plaintiff's third cause of action on the ground that the damages allowed were not substantiated by competent evidence but were based upon speculation and conjecture. The basis of the damages sought by plaintiff on this cause of action is that defendants were [67 Ariz. 115] fully apprised at the time the agreement was entered into that plaintiff would require by December 1, 1945, that portion of the premises known as the "brown house" for the purpose of installing a resident manager to manage and conduct the operations [ILLEGIBLE WORD] the entire premises including the contemplated general improvements and the erection of additional cabins thereon; and that defendants had failed and refused to deliver to plaintiff possession of the "brown ...