COLE et ux.
Rehearing Denied September 21, 1949.
Appeal from Superior Court, Pima County; M. T. Phelps, Judge.
Reversed with directions.
Stover & Martin, Tucson, for appellants.
James Elliott Dunseath, Tucson, for appellee.
Bernstein, Superior Judge. Udall and De Concini, JJ., and Donofrio, Superior Judge, concur. LaPrade, C. J., being ill, and Phelps, J., having been the trial judge, the Honorable Charles C. Bernstein and Honorable Francis J. Donofrio, Judges of the Superior Court of Maricopa County, were called to sit in their stead. Stanford, J., not participating in this opinion.
[69 Ariz. 82] This is an appeal by the defendants in the lower court, now appellants, from a judgment in favor of the plaintiff, appellee herein, awarding the plaintiff special damages, arising from an alleged breach of contract to sell real property in the Homer Brown Addition to the Townsite of Ajo, Pima County, Arizona.
The amended complaint of the plaintiff set forth a contract between the defendant and one Doran for the sale by defendant of a house and lot in said addition and
the purchase by plaintiff of Doran's interest in said contract. It further alleges the completion by plaintiff of the payments under the contract; that the plaintiff made demand upon defendant for an instrument of conveyance transferring the title of the property to her; and that the defendant failed and refused to make and deliver to the plaintiff a conveyance of the legal title of the property. The amended complaint further set forth that the plaintiff intended to buy and the defendant intended to sell Lot 7, Block 4 of said addition instead of Lot 7, Block 14 described in said contract. And, also that the mistake as to the description in said contract was the mutual mistake of the parties; that the defendant had failed and refused to make and deliver to the plaintiff a conveyance of title to Lot 7, Block 4, and could not make such a conveyance, as defendant did not own the same. It was further alleged in the amended complaint that after plaintiff [69 Ariz. 83] had made payment of the balance due under the contract, Homer Brown, who claimed title to Lot 7, Block 4, demanded from plaintiff possession of said property; that plaintiff purchased another lot in Ajo and moved the house located on Lot 7, Block 4 to said new lot as a result of said representations and demands; and the failure of defendant to convey to her title to said property. That plaintiff incurred an expense of $ 727.48 in moving the house was a further allegation.
Defendant moved to dismiss the amended complaint upon the ground that it did not state a claim upon which relief could be granted, which motion the trial court denied.
The facts established by the evidence are that on March 23, 1942 the defendant Cole entered into said contract with Doran for the sale of a house and lot in said addition for the agreed sum of $ 1,269.92, payable $ 80 cash and $ 30 per month until paid in full, with interest at 8 per cent per annum. This lot was erroneously described in the contract of sale as Lot 7, Block 14 of the Homer Brown Addition, the lot which the defendant Cole intended to sell to said Doran, and which Doran intended to purchase, being Lot 7, Block 4 of said addition. The defendants did not have title either to Lot 7, Block 4, or to Lot 7, Block 14. The undisputed fact is that the mistake as to the description in the sale agreement was mutual.
On July 20, 1944, Doran and wife with the consent of defendant assigned their rights in the contract of purchase to plaintiff. Plaintiff assumed and commenced to make the monthly payments on this contract, ...