ALBERT et ux.
Judgment reversed with directions.
Corbin & Orme, of Phoenix, attorneys for appellants.
William C. Eliot and John M. Levy, of Phoenix, attorneys for appellee.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.
[70 Ariz. 215] This is an appeal from a judgment allowing appellee, Benjamin Goor, doing business as Metropolitan Realty and Investment Company, a Realtor's commission based upon an arbitration award. The latter brought suit to recover a real estate commission of $ 4250 claimed to be due him from defendants, Kris G. Albert and Pearl Albert, his wife, who are the appellants herein. The appellants, prior to January 1947, were the owners of certain realty in Tempe, Arizona, known as the Casa Loma Hotel. This property was sold by them on or about January 2, 1947, to Clarence C. Porter and Edith Porter, his wife, for the sum of $ 87,500. As there were two rival claimants for the brokerage fee which was admittedly due thereon to one or the other, the court on appellants' motion ordered that Realtors Harry Whitefield and Albert Whitefield, doing business as Whitefield Realty, be made third party defendants pursuant to the provisions of Sec. 21-446, A.C.A. 1939. By appropriate pleadings both appellee Goor and third party defendants, Whitefields, claimed to have listings for sale (neither of which were alleged to be exclusive) on the hotel property from appellants, and each claimed to have been the procuring cause of the sale to the [70 Ariz. 216] Porters and therefore entitled to the usual 5% commission thereon.
With the settling of the pleadings the cause became at issue and was set for trial. However, shortly before the trial date all parties litigant in an effort, as they thought, to more speedily settle the controversy entered into a written agreement, dated June 15, 1947, to submit their dispute to arbitration, expressly agreeing to be bound by any award rendered and waiving the right of appeal therefrom. This agreement, signed by all of the parties but Pearl Albert, was drawn by the attorney for appellee without the knowledge of counsel for the other parties, and it contains this clear and unambiguous recitation as to the matters to be arbitrated: "1. All matters connected with the cause of Benjamin Goor, doing business under the trade name and style of Metropolitan Realty Investment Company, Plaintiff, v. Chris G. Albert and Pearl Albert, his wife, Defendants, v. Albert Whitefield and Harry Whitefield, doing business as Whitefield Realty Company, Third Party Defendants; No. 57371, in the Superior Court of the State of Arizona, in and for the County of Maricopa, shall be submitted to arbitration."
Mere reference to the pleadings in the suit makes it crystal clear that the single issue thus submitted to the arbiters was to determine which one of the rival realty firms was entitled to the Realtor's commission because of being the efficient, proximate and procuring cause of the sale. Appellants by their third party complaint alleged that they had not given an exclusive listing to either of the realty firms, admitted that they were indebted for a five per cent commission and stated that they could not safely determine which of said claimants the amount should be paid to.
Thus commissioned the three named arbiters, after conducting two hearings, one
in June and the other in September, 1947, made the ...