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Phoenix Title & Trust Co. v. Garrett

Supreme Court of Arizona

November 13, 1951

PHOENIX TITLE & TRUST CO. et al.
v.
GARRETT

Judgment affirmed.

Whitney, Ironside & Whitney, of Phoenix, for appellants.

William H. Burrus, of Phoenix, for appellee.

Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.

OPINION

Phelps, Justice.

This is an appeal from a judgment against appellants and from an order denying their motion for a new trial.

The facts are that in March, 1947, appellants John Cundiff, Willard H. Nelson, Ruth Hallas and Ernest Kneale were the owners of a tract of land located near Phoenix consisting of approximately 125 acres which they wished to have surveyed and platted "preparatory and preliminary to the erection of dwelling houses in the development and subdividing of said property."

Working to this end the above owners conveyed the property to appellant Phoenix Title & Trust Company as trustee, presumably to facilitate the efficient handling of sales and conveyances of homes, etc.

Appellant Cundiff contacted a civil engineer residing in Phoenix by the name of Lang with whom he was acquainted and sought to procure his services in surveying and platting the premises above mentioned. Lang was unable to do the work because of regular employment with a contracting firm but later recommended A. R. Garrett, appellee, [73 Ariz. 56] as being competent to do the work. Shortly thereafter appellants Cundiff and Nelson met Lang and appellee upon the premises at which time and place an oral agreement was reached as to the character of the survey to be made, the size of the lots to be platted and the time within which it could reasonably be expected to be completed

Nothing was said concerning the cost of the work to be done and there is a conflict in the evidence as to just what was said concerning who was to make the survey. Appellants claim they understood Lang was to make it, and appellee, supported by the testimony of Lang, asserted that it was agreed that appellee was to do the work. We deem this to be of no importance, however, in the determination of the issues involved.

Appellee made the survey and platting of the premises and presented a bill to appellants through appellant Cundiff for the sum of $ 1780 for the work done. This bill was not paid and appellee, within the time prescribed by statute, filed a laborer's and materialmen's lien against the premises and thereafter within 6 months from the date of filing such lien, instituted an action in the superior court of Maricopa County for the recovery of the amount claimed and for the foreclosure of his claim of lien against the premises.

Page 471

The case was tried to a jury and a verdict rendered in favor of appellee for the ...


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