CRONE et ux.
Richard H. Chambers, of Tucson, attorney for appellants.
Martin S. Rogers, of Tucson, attorney for appellee.
La Prade, Chief Justice. Udall, Stanford, Phelps, and De Concini, JJ., concur.
La Prade, Chief Justice.
[69 Ariz. 391] This is an appeal from a money judgment for labor and materials and fixing a lien. In August, 1946, appellants Mr. and Mrs. Crone (defendants below), owners of the El Rancho Corono Guest Ranch, located approximately 12 miles from Tucson, made arrangements with Voight Realty Company to procure a person who would loan $ 25,000 on the property to be used to take up two mortgages totaling $ 8,700, the balance to be left with the Realtor and expended through him toward a proposed addition to their then existing main building. Prior to these loan arrangements, appellants had engaged an architect to draw plans and specifications and supervise the construction. The architect had recommended a building contractor, Hector C. Amado, appellee (plaintiff). On August 28th, the Crones and Amado met in the Realtor's office and signed a "Memorandum of Agreement" prepared by the Realtor, and two days later this agreement was signed by the mortgagee referred to therein. The agreement was entitled:
"Memorandum of Agreement
Then followed a description of the property, specifications indicating generally the character of the new structure, referring to overall dimensions, number of rooms, room sizes, construction material, etc., and, quoting from the contract, it was provided that
"Mortgagee, through his agents, the Voight Realty Company, 603 East 6th Street, Tucson, Arizona, agrees to furnish the total sum of $ 25,000.00 to mortgagors and contractor as follows:
"$ 8700.00 upon the execution and delivery of said realty mortgage, out of which sum the existing first and second mortgages shall be paid in full and out of which sum all expenses in connection with the placing of said mortgage shall be paid;
"The remaining balance of said $ 25,000.00 shall be paid to the contractor, with the approval of Frederick Eastman, supervising architect, the approval of mortgagors and the approval of the mortgagee and his agents, Voight Realty Company, as follows:
"Monies are to be paid to materialmen and laborers as bills are submitted by the contractor, not oftener than once each week to Voight Realty Company. Ten per centum (10%) over and above each weekly or other bill for material and labor shall be paid direct to the contractor.
"Except that the sum of $ 1650.00 shall be withheld by the mortgagee through his agents, Voight Realty Company, until the said building is completed and ready for occupancy.
"All specifications not specifically mentioned herein shall be covered by formal [69 Ariz. 392] specifications to be drawn by Frederick Eastman, supervising architect, and nothing herein shall be interpreted so as to interfere with said architect's specifications. Plans and ...