WILSON et ux.
METHENY et ux
Reversed and remanded for new trial.
Carl Tenney, of Phoenix, for appellants.
Shute & Elsing, of Phoenix, for appellees.
La Prade, J., being
disqualified, the Honorable Lee Garrett, Judge of the Superior Court of Pima
County, was called to sit in his stead.
[72 Ariz. 340] This is an appeal from a judgment entered in favor of appellees on appellants' cross-complaint, and from an order denying appellants' motion for a new trial.
The facts are that appellees were on February 21, 1947, and prior thereto, the owners of: The South Half of the Southeast Quarter of the Southwest Quarter of the Northwest Quarter of Section Fourteen, Township One North, Range Three East of the Gila and Salt River Base and Meridian; except therefrom the North 50 feet of the East 180 feet.
For several years prior to that date, appellants (Wilsons) had been renting said premises from appellees (Methenys) at a monthly rental ranging from $ 17.50 to $ 25 per month. The rental agreement was at first on a month to month basis and later on a yearly basis with the rents payable monthly.
On February 21, 1947, appellants and appellees entered into a verbal agreement whereby appellants leased the above described premises from appellees for a period of one year beginning March 1, 1947, and ending March 1, 1948. There was also included in this agreement an option to purchase the premises from appellees provided the option was exercised by appellants at any time within the year. The purchase price of the property was fixed at $ 5,000 and the rental at $ 300 per annum which, in the event of purchase was to be applied upon the purchase price, leaving a balance [72 Ariz. 341] of $ 4,700 due to appellees from appellants. This agreement was reduced to writing on the following day and signed by Elves W. Metheny (husband) and the appellants. Ruth Metheny (wife) did not sign the written agreement although according to appellants' testimony she was present at the time the verbal agreement was entered into and actively participated in the negotiations leading up to the agreement. She personally suggested the inclusion of the option to purchase in the written lease agreement. She likewise suggested that inasmuch as the following day was a legal holiday, that they procure the services of a notary public with whom appellees were acquainted. This was done the following morning at the home of the notary public under the direction of Elves W. Metheny and Newton E. Wilson. The evidence was to the effect that Ruth Metheny was absent from this meeting because of a call upon some relative.
Subsequently thereto and on January 22, 1948, the city of Phoenix instituted an action in the superior court of Maricopa county to condemn the property in question together with a number of other parcels of land in that vicinity for use in the enlargement of the Phoenix airport. The land here involved was designated in that action as Parcel 13, and will be hereafter so designated in this opinion. Both appellants and appellees were made parties defendant in the condemnation proceedings. Appellants had been negotiating with the city in an attempt to agree upon the price to be paid by the city for the premises in question and immediately upon being served with a complaint, filed their answer in the condemnation proceedings. Appellees did not file their appearance in the action until March 22, 1948. In their answer they alleged they were the owners in fee simple of Parcel 13 and that appellants had no interest whatever therein.
On April 22, 1948, appellants filed a cross-complaint in the condemnation proceedings against appellees who were co-defendants in the action, setting up their lease and option to purchase and alleged that they had duly exercised their option and further alleged in substance that they had fully performed their part of their contract with appellees by paying to them the sum of $ 300 and notifying them of their election to exercise their option to purchase. They further alleged a tender of the balance of $ 4,700 to appellees; that said tender had at all times been kept alive and that the remainder of the funds due to appellees were then available at the Phoenix Title & Trust Company, to be paid to them upon their executing proper conveyance to the premises. ...