Rehearing Denied January 8, 1952.
Judgment on complaint affirmed, order granting new trial set aside with directions to reinstate judgment in favor of defendant.
H. Verlan Andersen, Milton L. Ollerton, of Phoenix, for appellant and cross-appellee.
Laney & Laney, of Phoenix, for appellee and cross-appellant.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.
[73 Ariz. 64] Phelps, Justice.
Wilburn Brown, hereinafter referred to as Brown, commenced an action in the superior court of Maricopa County to recover from James Karas, hereinafter called Karas, the sum of $ 10,000. Karas in his answer, denied the indebtedness and filed two separate counterclaims. In the first counterclaim he asked for judgment for $ 40,000 which he claimed Brown owed him under the terms of an agreement entered into by the parties on October 5, 1945. In the second counterclaim he asked for damages for a felonious assault he alleged to have been committed upon his person by Brown. The cause was tried to a jury and verdicts returned in favor of Karas and against Brown on the complaint; in favor of Karas and against Brown on the first counterclaim, and awarding Karas damages in the sum of $ 40,000; and in favor of Brown and against Karas on the second counterclaim, awarding Karas nothing thereon. Judgment was entered upon the verdicts accordingly.
The trial court thereafter denied Brown's motion for judgment notwithstanding the verdict and his motion to vacate the judgment against him and for a new trial on his complaint and granted his motion for a new trial on Karas' first counterclaim. The court also granted Karas' motion for a new trial on his second counterclaim.
Brown appeals from the order of the trial court denying his motion to vacate and set aside the judgment entered on [73 Ariz. 65] his complaint, and from the order denying his motion for a new trial. Karas appeals from the order of the trial court granting Brown's motion for an order setting aside the judgment entered upon his first counterclaim and from the order granting Brown's motion for a new trial thereon.
In order to clarify the issues presented, we believe it necessary to set forth in considerable detail the facts leading up to this litigation which are as follows:
Brown and Karas first became acquainted in November, 1944. In April 1945 Karas sold Brown a tavern he was then operating on East Van Buren Street near Phoenix. Karas at that time owned a number of perlite claims located near Superior, Arizona. He was also the owner of considerable machinery located on East Van Buren Street used by him for processing or "popping" perlite and had been engaged on a small scale in processing the same. He had likewise become the owner of all rights to a pending patent on the "popping" process of this material which as we understand it, is designed to expand the perlite originally extracted from the earth and to reduce its specific gravity. The whole property sold to Brown represented an investment by Karas of approximately $ 32,000.
Karas lived nearby and was a frequent visitor at the tavern. He first talked to Brown about selling him the property here involved as early as March, 1944. They subsequently talked it over on a number of occasions but Brown testified he did not become very much interested until shortly before October 5th, the date on which the first agreement to sell was reduced to writing and signed by Karas. At that time Karas had several prospects of sale, one of which was apparently ready for closing for the sum of $ 45,000 with a down payment of $ 20,000. Brown knew of this and persuaded Karas to not consummate the sale and thereupon entered into an agreement with him to purchase the perlite claims, the machinery and the pending patent rights for the "popping" process for the sum of $ 50,000, $ 10,000 payable in cash and ...