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Mallamo v. Hartman

Supreme Court of Arizona

October 9, 1950

MALLAMO
v.
HARTMAN et ux

On Motion for Rehearing.

For former decision of Supreme Court which reversed a judgment of the Superior Court, Pima County, J. Mercer Johnson, J., see 219 P.2d 1039, 70 Ariz. 294.

Judgment reversed and remanded with instructions.

Herbert Mallamo, of Phoenix, Leslie Parry, Phoenix, of Counsel, for appellant.

Knapp, Boyle, Bilby & Thompson, of Tucson, 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.

OPINION

Phelps, Justice.

[70 Ariz. 421] Appellees present a motion for rehearing in this cause upon the grounds:

1. That the court erred in holding that section 21-406, A.C.A.1939 requires the Statute of Frauds to be affirmatively plead in all cases;

2. The court erred in holding that subsection 7 of section 58-101 (Statute of

Page 798

Frauds) applies only to actions in which the broker is suing for compensation or a commission for the sale of real property; and

3. He claims there is no conflict in the evidence on the question of fraud.

We said in the original opinion that Rule 8(c), section 21-406, A.C.A.1939, requires the Statute of Frauds to be affirmatively plead in order to make it available as a defense. The statement there made was too broad. We should have said that in pleading to a preceding pleading it must be ...


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