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Bowser v. Sandige

Supreme Court of Arizona

December 1, 1952

BOWSER et al.

Rehearing Denied December 16, 1952.

Judgment affirmed.

V. L. Hash and Virginia Hash, of Phoenix, for appellants.

Carl W. Divelbiss, of Phoenix, for appellees.

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


Phelps, Justice.

[74 Ariz. 398] This is an action by John R. Sandige individually, and doing business as Sandige Realty Company, and J. D. Marihugh versus D. H. Bowser and wife for commission on the sale of real property. The parties will be referred to as plaintiffs and defendants throughout. On February 6, 1950, defendants listed with plaintiffs for sale a certain forty-acre tract of land belonging to them for the sum of $ 22,500. The listing contract was not exclusive and provided that "the right to offer the above described property for sale is to remain in your hands until 5-6-1950 and thereafter until terminated by me." The contract was not terminated by the Bowsers on May 6, 1950, and in fact was not attempted to be terminated until September 11 or 12, 1950. On September 11, 1950 Marihugh informed Bowser that he had a purchaser for the premises in question for the sum of $ 20,000 and according to Marihugh's testimony at that time, he exhibited to Bowser a written offer by a Mr. Mahoney and his wife together with their check for $ 5000 as earnest money. In what manner the written offer was exhibited to Bowser the record does not disclose. If the check was exhibited it was never in Bowser's hands. Marihugh [74 Ariz. 399] said he could have seen it, and that he did not try to conceal the signature thereon. Bowser denies having seen the check or the written offer but admitted that Marihugh told him he had a check for $ 5000 in his pocket. Marihugh did not by word of mouth, at least, give Bowser the name of the prospective purchaser. The defendant

Page 590

Bowser first testified that the listing agreement was terminated on September 16. Later he said it was either the 11th or 12th of that month. It is immaterial whether the contract was terminated on September 11, 12 or 16 so far as the rights of the parties are concerned.

At the time of the offer of $ 20,000, Bowser told Marihugh that his wife had decided she didn't want to sell the place. Bowser said that he terminated the contract at that time. We believe that the statement made by Bowser to Marihugh at that time amounted to a termination of the listing contract with plaintiffs, however it does not affect the right of the parties as to services already rendered as we will hereinafter point out. Marihugh later returned to Bowser with an offer for $ 21,000 which he said was the purchaser's top figure. Bowser again told him that he would not accept it and that his wife had decided not to sell, or preferred to keep the property.

At no time, according to the testimony of Bowser, Mahoney and Marihugh, did Bowser meet the prospective purchaser nor did Marihugh give Mahoney Bowser's home address. In addition to the Bowser property, Marihugh showed Mahoney a number of other tracts of land out in the Tolleson and Glendale areas. From all outward appearances after September 16 Mahoney was no longer a prospective purchaser and the Bowser property was withdrawn from the market and all other real estate brokers who had it listed had been so notified over the phone by Bowser.

Mahoney later decided that the Bowser land was the only tract shown him by Marihugh in which he was at all interested. During the month of October he ascertained from a man in Glendale where Bowser lived and found that he lived on Elm Drive. He then called upon Mr. Bowser and asked him if he would sell him the property. Bowser told him he had leased the property and it was off the market and he wouldn't sell it. Mahoney stated they later stopped to ask Bowser if he knew of a place for sale around Glendale and was informed by him that he did not. They did not then attempt to buy the Bowser property. Later, on about October 21st they went to Bowser again and asked him to sell the property to them. Bowser told them he would sell it if he could find a place that suited him. He stated they offered Bowser $ 21,000 for the property; that Bowser later found a place that suited him and then told them he would accept $ 21,440 for the property, $ 21,000 payable direct to Bowser and $ 440 by assuming and paying outstanding notes to the Water Users for pump water rights on the land which they agreed to pay, [74 Ariz. 400] and the transaction was consummated on October 23.

The cause was tried to the court sitting without a jury and at the close of all the evidence judgment was ordered entered for the plaintiffs ...

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