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Smith v. Phlegar

Supreme Court of Arizona

October 15, 1951

SMITH
v.
PHLEGAR

Page 750

[Copyrighted Material Omitted]

Page 751

Judgment affirmed.

W. H. Chester, of Phoenix, for appellant.

Carl W. Divelbiss, of Phoenix, for appellee.

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

OPINION

Udall, Chief Justice.

Page 752

[73 Ariz. 14] This is an appeal by the defendant (appellant -- Thad G. Smith) from a judgment of $ 14,600, entered against him on the plaintiff's (appellee) complaint, denying his counterclaim, and foreclosing an attachment lien upon certain equipment and real estate belonging to the defendant.

On Sept. 17, 1948, the plaintiff, E. O. Phlegar, and defendant entered into a written contract, whereby the defendant [73 Ariz. 15] agreed to build 29 homes, known as the Camelback Homes Subdivision, Phoenix, Arizona, and the plaintiff agreed to loan the defendant and his wife $ 15,000. The material parts of the contract as regards this appeal are set out as follows:

"1. That the Party of the Second Part (Phlegar) loans to the Party of the First Part the sum of Fifteen thousand Dollars ($ 15,000.00), receipt of which is hereby acknowledged by the Party of the First Part (Smith), same to be deposited to the account of Thad G. Smith Construction Account in the First National Bank of Arizona, Head Office, Phoenix, and to be withdrawn only upon the joint signatures of Thad G. Smith or Marie L. Smith and E. O. Phlegar, and said funds, together with any and all other funds herein mentioned, shall be used only in the building project above proposed. (Emphasis supplied.)

"2. The Party of the First Part to act as contractor, and shall have complete and unhampered supervision and management of all construction, purchasing, employing of workmen, and selling the completed houses, and any and all ...


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