HUISH et al.
Judgment reversed with directions.
Clarence E. Houston and Darrel G. Brown, of Tucson, Greg Garcia, of Phoenix, for appellants.
Holmes & Morrison, and W. H. Quesnel, of Tucson, for appellee.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concurring.
[70 Ariz. 203] Appellee, Concha Torres Lopez, as plaintiff, brought suit against defendants (appellants) Carolotta Huish, her husband Owen Huish, and her niece Victoria Chaides, a single woman, for money allegedly had and received by them from the plaintiff and to and for her use. Plaintiff prevailed in the lower court and obtained a judgment for the full amount sued for, to wit, $ 2,000. It is from this judgment and a denial of their motion for a new trial that this appeal was taken.
Before considering the assignments of error we deem it advisable to set forth an outline of the essential facts out of which this controversy arose. Victoria Chaides was the owner of lot 8, block 4, Riverside Park Addition to the City of Tucson, upon
which a new home had been recently constructed, the premises being designated as 752 North Grand Avenue. On May 19, 1947, the plaintiff and defendant, Carolotta Huish, entered into an oral agreement for the purchase and sale of said property and $ 100 was paid to bind the bargain. From the opening statement by plaintiff's counsel, as well as the evidence adduced to this point, we feel safe in asserting it was understood at all times that the latter was acting solely as the agent for her niece, Victoria Chaides, who was then a minor of the age of 20 1/2 years. It was contemplated that the oral agreement would be reduced to writing and signed by plaintiff and Miss Chaides. There is no dispute but what the terms of the agreement were that the plaintiff was to pay $ 7,500 for the property, $ 2,000 of which was to be paid down and the balance at the rate of $ 75 per month with interest on deferred installments. In accordance with this agreement the plaintiff [70 Ariz. 204] on May 21st completed the full down payment of $ 2,000. She went into possession of the property on June 2, 1947, and occupied the premises for a period of two months or more, holding herself out as the owner thereof. Plaintiff had the utilities changed to her name, rearranged the shrubbery on the place, remodeled a concrete walk, took out her own insurance on the buildings and rented out for a six months period a small rear apartment to defendant Carolotta Huish for the total sum of $ 30.
Sometime between May 20, and June 8, 1947 (the exact date being unascertainable from the record) Mrs. Lopez and Mrs. Huish went to Edmond R. Carillo, a notary public in Tucson, and had the oral agreement reduced to writing. It was then signed by the plaintiff and left with the notary who was to procure the signature of the defendant Chaides. It seems obvious that had the plaintiff considered the property as belonging to Carolotta Huish the latter's name would not only have appeared in the contract as the seller instead of her niece, Victoria Chaides, but same would have been signed then and there by both Mrs. Lopez and Mrs. Huish. This agreement, later ratified by Miss Chaides after attaining her majority, actually was never signed by her though she made one trip to the notary's place of business for that purpose but he would not permit her to sign because the plaintiff was not also present. The original contract bearing the signature of Mrs. Lopez is not in evidence. However, the notary testified that it was signed by her but after difficulties arose between the parties he was induced by the plaintiff and her counsel to tear off her signature to the contract and give it to them and later he completely destroyed the original document. The trial court finally admitted in evidence, for a limited purpose only, a copy of printed form of "contract for the sale of real estate" which the notary testified was the form he had used in preparing the contract.
The issues, as framed by the pleadings upon which the case was tried, were these: plaintiff's amended complaint contained two counts, the first was in the form of the common-law count of indebitatus assumpsit (for money had and received) based upon the allegation that defendants had received $ 2,000 to and for the use of plaintiff, that plaintiff had demanded payment and no part of said sum had been paid. The second count was identical with the first except for the addition of an allegation that on June 10, 1947, the defendants had promised to pay the sum sued for to the plaintiff upon demand. By their amended answer the defendants allege that the $ 2,000 received by them was pursuant to the terms of a written contract for the sale of the realty and they admit that plaintiff demanded repayment of the money with which demand they had refused to comply. By a cross-claim the defendants set up the written contract of sale for the property in question, alleging the signing thereof by plaintiff, setting forth her acts of ownership, [70 Ariz. 205] alleging performance of the agreement upon their part and ...