Rehearing Denied April 28, 1949.
Appeal from Superior Court, Maricopa County; Walter J. Thalheimer, Judge.
Suit for specific performance of an option agreement by Robert H. Brazee against George T. Morris, also known as G. T. Morris. From the judgment plaintiff appeals.
Reversed and remanded, with directions.
Theodore G. McKesson, Thomas P. Riordan and James D. McKesson, all of Phoenix, for appellant.
John M. Levy and Lloyd J. Andrews, both of Phoenix, for appellee.
Udall, Justice. Stanford, Phelps and De Concini, JJ., concurring. Due to illness, the Chief Justice did not participate in determining this appeal.
[68 Ariz. 226] This is an appeal by Robert H. Brazee, plaintiff below, from a judgment of the superior court of Maricopa county denying him specific performance of an alleged option agreement between George T. Morris, defendant-appellee, and himself, whereby the defendant agreed to sell to plaintiff two lots in the Collins Addition to the City of Phoenix upon the latter's exercise of the option.
The case is before us for the second time. At the original trial the jury found, upon the only interrogatory presented to them, that defendant had not signed the option agreement, and, as the action had been brought upon such written instrument, judgment was entered for the defendant. We reversed the judgment and ordered a new trial, Brazee v. Morris, 65 Ariz. 291, 179 P.2d 442, because of improper cross-examination of a handwriting expert.
Upon the retrial the jury answered the interrogatory relative to the genuineness of defendant's signature directly contrary to the finding on the similar interrogatory submitted at the first trial, their verdict being that the signature on the written option agreement was that of the defendant Morris. However, a second interrogatory reading, "Was the signature of G. T. Morris, the defendant, obtained on Plaintiff's Exhibit J, being the option agreement, obtained by fraud and misrepresentation?" was submitted to the jury and answered by them in the affirmative. It is upon this last finding that the present judgment rests. The case was retried upon the original pleadings, no amendments having been made thereto. At the close of all of the evidence counsel for plaintiff moved for a directed verdict, which motion was denied. After the verdict had been rendered, but before judgment had been entered these additional motions [68 Ariz. 227] were also made and denied by the court: a motion for judgment of specific performance in accordance with the answer to interrogatory number one; a motion for judgment notwithstanding the verdict; and a motion for a new trial. The notice of appeal covers the denial of all these motions.
While plaintiff has submitted seven assignments of error and three propositions of law, we believe that the appeal may readily be determined upon the challenge to the sufficiency of the evidence to sustain the allegation of defendant's answer "that said (his) signature was obtained by fraud and misrepresentation on the part of the plaintiff with no consideration whatever."
In the former opinion we discussed, in a somewhat abstract manner, the legal sufficiency of this method of pleading fraud as a defense, but concluded that in any event the plaintiff was in nowise prejudiced as the case was tried wholly upon the issue of genuineness of defendant's signature. This comment is equally applicable to the second trial. Certainly nothing that was said in our previous decision in Brazee v. Morris, supra, was intended to sanction a departure from the well-established rules requiring the stating with particularity of the circumstances constituting fraud or mistake. This ...