Reversed and remanded for new trial.
Marshall W. Haislip, of Phoenix, for appellant.
Robert & Price, of Phoenix, for appellee.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concurring.
De Concini, Justice.
[70 Ariz. 409] In our former opinion, June 12, 1950, 70 Ariz. 257, 219 P.2d 339, we held that as a matter of law there was bad faith shown on the broker's part which precluded him from recovery of his commission. In the light of the motion for rehearing and a re-examination of the evidence and instructions we are constrained to change our view.
Kelley Rogers, hereinafter called appellee, brought an action against L. F. Haymes, hereinafter referred to as appellant, seeking to recover a real estate commission in the sum of $ 425.00. The case was tried before a jury which returned a verdict in favor of appellee. The said appellant owned a piece of realty which he had listed for sale with the appellee, real estate broker, for the sum of $ 9,500. The listing card which appellant signed provided that the commission to be paid appellee for selling the property was to be five (5%) per cent of the total selling price. Tom Kolouch was employed by the said appellee as a real estate salesman, and is hereinafter referred to as "salesman".
On February 4, 1948 the said salesman contacted Mr. and Mrs. Louis Pour, prospective clients. He showed them various parcels of real estate, made an appointment with them for the following day in order to show them appellant's property. The salesman then drew a diagram of the said property in order to enable the Pours to locate and identify it the next day for their appointment. The Pours, however, proceeded to go to appellant's property that very day and encountering the appellant, negotiated directly with him and purchased the property for the price of $ 8,500. The transcript of evidence reveals
that the appellant knew the Pours had been sent to him through the efforts of appellee's salesman, but whether he knew it before they verbally agreed on a sale and appellant had accepted a $ 50 deposit was in dispute. Upon learning that fact he told the Pours that he would take care of the salesman.
Appellant makes several assignments of error and propositions of law directed against the appellee's requested instructions given by the trial court and the court's refusal to grant his requested instructions and a motion for an instructed verdict in favor of the defendant.
The trial court correctly refused defendant's motion for an instructed verdict in his favor, because the matter of bad faith on the part of the appellee ...