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Chernov v. Sandell

Supreme Court of Arizona

May 16, 1949

CHERNOV et al.
v.
SANDELL

Rehearing Denied July 16, 1949.

Appeal from Superior Court, Maricopa County; Thomas J. Croaff, Judge.

Judgment affirmed.

John M. Levy and Lloyd J. Andrews, Phoenix, for appellants.

V. L. Hash, Phoenix, for appellee.

Phelps, Justice. Udall, Stanford, De Concini, JJ., and Jennings, Superior Judge, concur.Note: Chief Justice LaPrade being ill, the Honorable Renz L. Jennings, Judge of the Superior Court of Maricopa County was called to sit in his stead.

OPINION

Phelps, Justice.

Page 349

[68 Ariz. 329] Benjamin Sandell, appellee, hereinafter called plaintiff, brought an action in the Superior Court of Maricopa County against Henry B. Chernov and Charles H. Chernov, appellants, hereinafter called defendants, to recover $ 1250 from said defendants which plaintiff claims was obtained by them through representations that were untrue and upon which plaintiff relied.

The plaintiff alleges in his complaint that he was unemployed and on or about November 27, 1946, defendants, who were then copartners engaged in the business of contract painting in Phoenix, offered him a partnership in the business; that they informed him that he would have to pay to defendants the sum of $ 1500 so that defendants might obtain a license from the state of Arizona to engage in the painting contract business as a copartnership and that it was necessary that plaintiff deposit with defendants said sum of $ 1500 to insure the securing of said license; that he relied on said representations and, believing it was necessary to deposit said sum with defendants, did deposit with them the sum of $ 1500. The evidence shows that he paid said sum by check, $ 750 to Henry B. Chernov and $ 750 to Charles H. Chernov.

The complaint further alleges that later Henry B. Chernov returned $ 250 of said sum to plaintiff. He now seeks judgment against defendants for $ 1250.

Defendants filed a motion to dismiss the cause of action upon the ground that said complaint did not state a claim upon which relief could be granted, assigning as a reason therefor that the copartnership agreement, clause 10, thereof, provided for an arbitration of such a claim which constituted his exclusive remedy for redress in this case. Upon said motion being denied by the trial court defendants filed a general denial and Henry B. Chernov filed a cross-complaint against plaintiff praying for recovery of $ 250 from him as and for a loan to plaintiff which he alleged he made to him as evidenced by a promissory note executed by plaintiff in favor of the said Henry B. Chernov dated November 27, 1946. To this cross-complaint the plaintiff filed a reply in which he admitted the execution of said note but alleged that it was wholly without consideration.

The cause was tried to a jury which found the issues on both the complaint and cross-complaint in favor of the plaintiff.

From said verdict and judgment of the court and from an order denying defendant's motion for a new trial the cause is appealed to this court.

The records in this case stand out as a signal monument to a lack of preparation of the case and a proper consideration of the issues involved at the trial of said cause. Certainly it in no wise reflects the ability which we know that all the counsel who participated in the trial possess.

A casual reading of the complaint evidences a total disregard by the pleader of the cardinal rules as set forth by this court [68 Ariz. 330] as to what is required in a pleading to constitute actionable fraud. The complaint is wholly lacking in the essentials required. No steps were taken by the defense to have the deficiency supplied by requiring the plaintiff to amend his ...


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