Bissell & Fike, Phoenix, Milton L. Ollerton, Phoenix, of counsel, for appellant.
Langmade & Sullivan, Phoenix, for appellee J. Martin Wahl.
Snell, Wilmer, Walsh, Melczer & Beauchamp, Phoenix, for appellee Bert Cavanagh.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concurring.
Udall, Chief Justice.
[71 Ariz. 414] The basic question presented by this appeal is whether, under the facts shown by the record, Tony Joshu, defendant-appellant, was entitled to rescind unilaterally without previous demand or notice upon J. Martin Wahl, plaintiff-appellee, a formal written contract entered into between the parties. The subject matter of the contract concerned a sale by Wahl to Joshu of the Four Star Market located in the city of Phoenix at Third Street and Indian School Road.
While the suit was instituted by plaintiff Wahl to recover the claimed inventory cash value of the stock of merchandise in the
market, and other incidental relief, the main issue upon which the case was submitted to the lower court was the defense invoked by Joshu in his answer (also alleged by counterclaim in which he sought recovery for the purchase money theretofore paid) that he had a right to avoid the obligation to purchase the market by reason of plaintiff's delay in securing the lease called for by the contract.
This contract between the parties -- the inartful work of a layman realtor -- may be [71 Ariz. 415] briefly summarized. Joshu, the purchaser, agreed to pay plaintiff for the Four Star Market the sum of $ 20,500 plus the inventoried cash value of the stock of merchandise. The payments were to be made as follows: $ 1000 upon the signing of the agreement on July 10, 1948; $ 4000 on or before July 22, 1948; $ 15,500 on or before October 20, 1948; and the inventoried value of the goods to be paid for on or before January 1, 1949, this latter sum to draw interest at 5% from date of inventory and to be secured by a mortgage on the fixtures and equipment in the store.
The seller Wahl in return was to furnish defendant with a bill of sale to the equipment and fixtures, transfer title to the market's Chevrolet panel delivery truck, and secure a lease to the premises for seven years at an agreed rental of $ 175 per month, with an option for an additional three years upon the same terms, and assign same to Joshu.
Time was expressly declared to be the essence of the contract, however no time was specified within which the seller Wahl was to ...