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Koen v. Cavanagh

Supreme Court of Arizona

October 2, 1950

KOEN et ux.
v.
CAVANAGH et al

Affirmed.

V. L. Hash, of Phoenix, for appellants.

Jennings, Strouss, Salmon & Trask, of Phoenix, for appellees.

Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.

OPINION

Udall, Justice.

The sole question presented by this appeal is whether the trial court erred in taking the case from the jury and directing a verdict for the defendants.

J. H. Koen and Marie Koen, his wife, plaintiffs-appellants, brought this action to recover $ 500 paid by them to Bert Cavanagh et als., defendants-appellees, as a down payment and earnest money on the purchase of certain realty, located at 3307 N. 19th Avenue, a part of what is commonly known as the Carlton Estates in the city of Phoenix. The complaint alleges actionable fraud and misrepresentation. The parties will hereinafter be referred to as they were in the lower court.

At the time the transaction took place the plaintiffs were residing in Phoenix. Koen was a cabinet maker and was desirous of purchasing a place outside the city limits in order that he might set up a cabinet [70 Ariz. 390] shop without restriction from city or zoning ordinances. He also wanted to be away from the more populous areas, his work as a cabinet maker necessarily entailing considerable noise.

The property involved had been listed for sale with the Bert Cavanagh Realty Company by defendants M. C. Roberts and Bernice Roberts, his wife, owners of the property. In an attempt to sell the property, defendant Mary L. Crook, a saleswoman employed by Cavanagh, held open house at the Roberts' home on Sunday, December 29, 1946. Plaintiffs attended and became interested in purchasing the property. Thereafter, on January 4, 1947, a contract was negotiated by Mrs. Crook and signed by J. H. Koen and Marie Koen as purchasers,

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plaintiffs agreeing to purchase the property for $ 10,500. A $ 500 check was written by Koen, made payable to Cavanagh, and delivered to Mrs. Crook at that time, such sum constituting the down payment and earnest money involved in this suit. An escrow agreement was entered into by the parties on January 6, 1947, with Phoenix Title and Trust Company as the escrow agent.

The evidence shows that at the time plaintiffs first called at the open house held by Mrs. Crook, and again at the time the contract for the sale and purchase of the realty was made, plaintiffs asked Mrs. Crook whether or not the property was within the city limits. On both occasions Mrs. Crook told the plaintiffs that the property was outside the city limits.

Prior to the time negotiations for the purchase and sale of the realty in question were being made, and insofar as the evidence shows unknown to any of the parties involved, a petition had been filed by property owners adjacent to the city for the annexation of the Carlton Estates to the city. Included therein was the Roberts' property. The petition was filed on November 27, 1946, and on December 3, the city commission met, discussed the petition and directed the city attorney to prepare an ordinance effecting the annexation of the area. Ordinance ...


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