SLIGH et al.
WATSON et ux
See also 67 Ariz. 95, 191 P.2d 724.
Stanley Kimble, of Tucson, for appellants.
Bob Barber and Franklin E. Vaughan, of Tucson, for appellees.
Thomas, Superior Judge. La Prade, C. J., and De Concini, J., concur. Stanford, J., being disqualified because of illness, the Honorable Frank E. Thomas, Judge of the Superior Court of Cochise County, was called to sit in his stead. Udall, Justice, with whom Phelps, Justice, joins (dissenting in part).
Thomas, Superior Judge.
[69 Ariz. 376] Mildred Sligh, doing business as Sligh Realty, joined by her husband, George Sligh, brought suit in the lower court to recover a commission as real estate broker based on a written preliminary sales agreement with defendants-appellees, S. I. Watson and Alta S. Watson, his wife. Appellants' complaint set out all the necessary allegations to state a good cause of action. Issues were formed on defendants' second amended answer which set up several denials of the allegations of the complaint and pleaded as special defenses: (1) That the written contract executed by defendants and plaintiff made it a condition precedent to recovery of plaintiff's commission that defendant furnish merchantable title and that defendants had been unable to furnish merchantable title and therefore plaintiff was not entitled to her commission; (2) that at the time, and prior to the signing of said preliminary sales agreement, the defendants informed the plaintiff that the property involved was in the process of probate in the Superior Court of Pima County, that a contest had been filed to the petition for the decree of distribution therein, and that said matter was yet to be litigated in that court; that as a result of said contest, it was impossible at the time of executing said preliminary sales agreement to convey the property therein described with merchantable title and the plaintiff was then informed of such fact by the defendants.
Thereafter, each party filed a motion for summary judgment as authorized by Sections 21-1210 and 21-1211, A.C.A.1939. Plaintiff's motion was denied and defendants' motion granted. From which ruling plaintiff assigns as error the following: 1. The finding that there was no genuine issue as to any material fact. 2. The finding that defendants were entitled to a judgment as a matter of law. 3. The granting of defendants' motion for summary judgment. 4. The failure to grant plaintiff's motion for summary judgment.
It is apparent at once that assignment number one is wholly inconsistent with assignment number four. The former alleges error because of the court's failure to find a genuine issue as to material facts and the latter that the court erred by failing to grant her motion for summary judgment which action could only have been taken if there was no real issue of fact. While under the rules it is permissible in [69 Ariz. 377] the trial court to set forth two or more statements of a claim alternatively, regardless of consistency, Sec. 21-408, A.C.A.1939, we are of the opinion that this is no authority or justification for an appellant advancing inconsistent assignments in this court. The purpose of permitting inconsistent claims in the trial court is to allow the pleading party to take advantage of any possible development in the evidence which would show him to be entitled to a recovery and thus prevent his being forced to elect in advance and at his peril which theory he will proceed upon. Julian v. Carpenter, 65 Ariz. 157, 176 P.2d 693. On appeal no such exigency is present, the record has been made, the issues stand in bold relief, and surely there is no sound reason for an appellant vacillating with inconsistent theories when his case reaches this court.
This being a case where a summary judgment was granted to defendants, our first inquiry should be directed to the basic essential for the granting of a summary
judgment. Our court considered this matter in Lewis v. Palmer, 67 Ariz. 189, 193 P.2d 456, 457: "The law is that the procedure for summary judgment may be availed of to bring an action to prompt conclusion when the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Section 21-1212, A.C.A.1939; Manor v. Barry, 62 Ariz. 122, 154 P.2d 374." See also Cress v. Switzer, 61 Ariz. 405, 150 P.2d 86. In 49 C.J.S., Judgments, § 220, page 394, this statement appears: "* * * If it is apparent from the opposing affidavits or other pleadings and proof that there is a substantial issue between the parties, a judgment can be entered only after the trial of the issue in regular course. * * *" We also quote with approval the following excerpt from Dwan v. Massarene, 199 A.D. 872, 192 N.Y.S. 577, 582: "The power (to enter summary judgment) is given to the court, but it is needless to say that it must be exercised with care, and not extended beyond its just limits. The court is not authorized to try the issue, but is to determine whether there is an issue to be tried. If there is, it must be tried by a jury. * * * He cannot shelter himself behind general or specific denials, or denials of knowledge or information sufficient to form a belief. He must show that his denial or his defense is not false and sham, but interposed in good faith and not for delay."
As to the allegation of plaintiff that she was a duly licensed real estate broker, defendants' answer is as follows: "Defendants have no knowledge as to the truth or falsity and therefore deny same and demand strict proof thereof." Whether plaintiff was duly licensed as a broker was a material fact; if she was not licensed, it would certainly bar recovery of a commission. However, we are of the opinion that the above denial does not comply nor [69 Ariz. 378] conform with the requirements of Section 21-405, A.C.A.1939, and was therefore insufficient to constitute a denial, inasmuch as the above statute requires lack of knowledge or information sufficient to form a belief as to the truth of an averment.
The further denials of defendants "without knowledge as to the truth and falsity thereof" as to the listing of their property with plaintiff, the execution of the preliminary sales agreement and as to the commission provided by the Real Estate Board of Tucson are open to the same criticism and fall under the same category pointed out in the ineffectual denial of plaintiff being a real estate broker. Obviously, these so-called denials were more apparent than real. Any doubt as to this is removed by the fact that both parties moved for summary judgment and both motions were heard at the same time. We are in accord with the rule set up in Meyer v. Selggio, 80 Cal.App.2d 161, 181 P.2d 690, 692 in which a similar situation was discussed: "It is settled that a denial for want of information or belief of an alleged fact which may be ascertained from an inspection of a public record within the reach of defendant is insufficient to raise an issue, and that such a denial constitutes an admission of the allegation of the complaint." See also Oregon Mesabi Corp. v. C. D. Johnson Lumber Corp., 9 Cir., 166 F.2d 997; Squire v. Levan, D. C., 32 F.Supp. 437; Silverman v. Levy, Sup., 75 N.Y.S.2d 797. We also approve of the views of the court in Williamson v. Clapper, 88 Cal.App.2d 645, 199 P.2d 337, as expressed in the syllabus: "The growing tendency, in drafting answers, to deny under oath generally the allegations of the complaint without distinguishing between the allegations which are unquestionably true and those which it is desired in good faith to put in issue, is not sanctioned by the law and is inexcusable."
This disposes of the apparent denials in defendants' second amended answer and leaves for our consideration next, defendants' contention that as a matter of law, by the wording of the preliminary sales agreement, plaintiff's right to commission was contingent upon defendants' furnishing "merchantable title." To determine this question it is essential that we interpret the preliminary tri-party sales agreement, as this agreement (couched in the usual phraseology
of the form adopted by the Real Estate Board of Tucson, e. g., see Eason v. Heighton, 49 Ariz. 237, 65 P.2d 1373) forms the principal basis for plaintiff's second and third assignments of error. For the sake of brevity we shall quote only those portions of the agreement bearing directly upon the questions of merchantable title and brokerage fees.
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August 12, 1946
"Received of Meyer Feldman and Esther B., his wife, purchaser, the sum of One Thousand And No/100 Dollars ($ 1,000.00) [69 Ariz. 379] as part of the purchase price of the following described property: Brick stucco home at 2728 E. Third Street and inventory herewith attached including all furniture, equipment and all in said premises except tenant's personal items (signed) H. Bee which for account of and as agent for the owner, the undersigned has this day sold to the above named purchaser, subject to acceptance of the owner and merchantable title, at the price and under the terms and conditions herein set forth. * * *
"In the event that this sale involves an exchange of properties, it is understood and agreed that the undersigned agent shall act as agent for both parties to the transaction and may receive full commission from both parties for the sale of respective properties. All taxes, insurance premiums, interest or assessments, all mortgage or contract interest, rentals and water charges shall be pro rated as of the date of closing sale. Purchaser shall assume balance payable on all assessments as same now exist.
"By Sligh Realty
(Signed) Harry Bee
"The undersigned purchaser hereby agrees to purchase the above described property at the price and under the terms and conditions hereinabove set forth. You are hereby given 2 days to obtain the owner's acceptance of this sale, ...