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Leigh v. Swartz

Supreme Court of Arizona

May 26, 1952

LEIGH et al.
v.
SWARTZ

Affirmed in part, reversed in part.

Carlos G. Robles and Krucker & Evans, all of Tucson, for appellants.

James Elliott Dunseath, of Tucson, for appellee.

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

OPINION

Udall, Chief Justice.

Page 263

[74 Ariz. 110] This is an appeal by defendants, Joe Leigh and Harry R. Brown, from that portion of the judgment of the lower court awarding plaintiff (appellee), Le Verta W. Swartz, $ 9,000 as damages for alleged fraudulent representations of the defendants in connection with a certain real estate transaction. The parties having expressly waived a jury, the matter was tried to the court and after a three day trial, it made findings of fact and conclusions of law before entering judgment quieting title and awarding damages.

[74 Ariz. 111] The facts in the case are quite complicated and we are presented with a voluminous transcript in addition to numerous exhibits. One wanders as in a maze at the finagling of defendant Leigh in this matter. The record presents a confusing and baffling network of high finance in his

Page 264

dealings with the plaintiff Swartz that far outstrips that shown in the related case of Leigh v. Loyd, 74 Ariz. 84, 244 P.2d 356.

The pertinent facts, stated in a light most favorable to sustaining the judgment, are as follows: In March or April of 1947, the defendant Brown acquired title to the realty and improvements known as La Fiesta Restaurant, 2834 E. Grant Road, Tucson, Arizona, from Maude Bevel. He assumed three realty mortgages on the property, a chattel mortgage against the equipment, and paid Miss Bevel $ 3,200 in cash. A short time later he entered into a partnership with John R. Troxell who assumed one-half of the existing obligations and paid Brown $ 3,400. They operated the restaurant for about a year, and because business was bad, listed the property with the defendant Joe Leigh, a real estate broker, for sale. Brown then went to work for Leigh as a real estate salesman.

About a month after the listing, Leigh and Brown decided to convert the property into a rest home and Leigh purchased Troxell's partnership interest for $ 1,000. Legal title was conveyed to one Ray Hamblen to hold for the defendants. They then refinanced the third mortgage and gave the new mortgagee a $ 1,000 bonus. To obtain the money to remodel and convert the property into a rest home, another mortgage was placed on it for $ 2,500.

During a visit to Tucson in March 1947, Mrs. Swartz, a widow 64 years of age and without any previous business experience, discussed with Leigh the possibility of investing the proceeds from the sale of her home in Williamsport, Pennsylvania. She returned to Williamsport and Leigh wrote to her about the property here in question and suggested that it would be a good investment. She sold her home and moved to Tucson, arriving there the first part of December, 1948. Shortly thereafter Leigh contacted her about buying a half interest in the property for $ 20,000. He represented to her that he was the sole owner, that it was worth $ 50,000, that it was fully equipped (with the exception of a few pots and pans) to operate a rest home or a ...


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