Reversed and remanded with directions.
Herbert Mallamo, of Phoenix, Leslie Parry, Phoenix, of counsel, attorneys for appellant.
Knapp, Boyle, Bilby & Thompson, of Tucson, attorneys for appellees.
Phelps, Justice. La Prade, C. J., and Udall and Stanford, JJ., concur. De Concini, J., did not participate in the determination of this case.
[70 Ariz. 295] Paul Mallamo, plaintiff and appellant herein, brought this action in the Superior Court of Pima County against Paul Hartman and Maxine C. Hartman, his wife, defendants and appellees, seeking to impose a
trust upon the south 111.10 feet of Lot 6 and all of Lot 5, Block 6, Samos Addition, a subdivision adjacent to the City of Tucson, Pima County, Arizona, or in the alternative to recover damages, and as a ground therefor claims that on or about June 1, 1946 he employed defendant Paul Hartman, hereinafter referred to as Hartman, as his agent to procure for him a lot or lots upon which plaintiff desired to build. Plaintiff was then engaged in building and selling houses.
He claims that pursuant thereto and during the latter part of August or early [70 Ariz. 296] September of that year Hartman showed him several pieces of property among which was the above described lots in Samos addition and advised him that the list price of the Samos property was $ 1650; that he, plaintiff, then directed Hartman to purchase this property for him and to negotiate with the owner on his behalf for the purchase thereof on a basis of part payment in cash and the remainder in monthly installments. He claims he directed Hartman to ascertain from the owners upon what terms they would sell the property and to advise him.
That Hartman, so plaintiff maintains, instead of complying with plaintiff's instructions, bought the property for himself and as an excuse therefor falsely represented to plaintiff that the owners would not sell except for cash in full; that the title thereto was defective and cloudy and that he advised plaintiff not to buy it but to purchase other property.
That plaintiff was at the time able to pay cash for the property if necessary but preferred to purchase it on deferred payments. He claims the representations made by Hartman to the effect that the owners demanded cash in full upon the sale of the property and that the title was defective were false in that there was no defect in the title and that Hartman did purchase the property at the time on the deferred payment plan and that satisfactory and merchantable title was given to defendants.
The plaintiff further claims that thereafter on March 6, 1947, without knowledge of the above facts, he purchased the property from defendants for $ 3500.
These facts are alleged in substance in plaintiff's complaint which is set up in two separate counts. The first count seeks the imposition of the trust and the second count asks for damages.
Defendants answered the complaint by filing a general denial.
The cause was tried to a jury. At the close of plaintiff's case defendants presented a motion for an instructed verdict upon the ground (1) that the evidence of plaintiff was insufficient to support the allegations of the complaint or to constitute a cause of action against defendants; (2) That the evidence shows that plaintiff had waived his right to bring this action by purchasing the property involved from defendants and by waiting longer than a reasonable time to institute his action against defendants after discovery of fraud; (3) upon the ground that the contract of agency between plaintiff and Hartman falls within the Statute of Frauds.
The court after taking the matter under advisement until the following morning granted the motion for an instructed verdict for defendants. Judgment was entered accordingly. From such judgment and an order denying plaintiff's motion for a new trial plaintiff prosecutes an appeal to this court and presents five separate assignments of error. We believe a consideration ...