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Rubens v. Costello

Supreme Court of Arizona

December 8, 1952

RUBENS
v.
COSTELLO et ux.

[75 Ariz. 7] George F. Macdonald, of Phoenix, for appellant.

George M. Sterling, of Phoenix, for appellees.

UDALL, Chief Justice.

The appellant, Frank S. Rubens, plaintiff below, brought suit against the appellees, Peter Costello and Margaret S. Costello,

Page 307

defendants below, to recover on a check made to appellant by Peter Costello, which check for $500 was allegedly given 'in payment of ten participating shares in 98% of all revenue earned from drilling, exploiting or sale of certain oil and gas leases on lands located in Hidalgo County, New Mexico, as shown by that certain 'Beneficial Trust' agreement.' Defendants stopped payment on the check and this suit resulted. From an adverse judgment the plaintiff appeals.

The parties will hereafter be referred to as they appeared in the lower court.

The plaintiff held a license from the corporation commission under the then existing law, the material parts of which are quoted below:

'Opinion and Order

'Application having been made by Frank S. Rubens for a Dealers in Securities Permit to sell and deal in oil and gas leases in the amount of Fifty Thousand ($50,000) Dollars.

'It Appearing That, the applicant has complied with the provisions of Chapter 53, Article 10, Arizona Code Annotated, 1939, and the amendments thereto, along with the provisions of the Opinion from the Attorney General promulgated March 25, 1949; and that detailed information in regard to the applicant is on file in the office of the Arizona Corporation Commission for public inspection and information.

'It is Therefore Ordered, that the application herein be granted and that the said Frank S. Rubens be and he is hereby authorized to sell oil and gas leases in the amount of Fifty Thousand ($50,000) Dollars.'

Shortly after the license was granted at an evening appointment in their home, the plaintiff offered defendants his securities. The security was a 'beneficial trust' instrument signed by George H. Ebsen as trustee, purportedly conveying [75 Ariz. 8] a fractional interest, expressed in shares, in 98% of the revenue that might accrue from the development of certain oil and gas leases. The leases, issued to plaintiff by the State of New Mexico, at an annual rental of from ten to twenty cents an acre, and assigned by him to Ebsen as trustee, covered 960 acres of state land.

A similar fractional interest, expressed in shares in 50% of the revenue that might accrue from the development of an oil and gas lease on 80 acres of land close to the 960 acres, was purportedly conveyed by an 'Agreement', signed Centex Exploration Co. by Frank S. Rubens, which allegedly was given as a gift to the defendants.

The lower court, sitting without a jury, made no findings of fact as no request therefor was made. The plaintiff, through numerous assignments of error, contends that the defendants failed to substantiate the allegations of their answer that the check was given without legal consideration and that the plaintiff made false and fraudulent representations which induced defendants to issue the check; and further that the plaintiff did sustain the burden of proof and by the preponderance of the evidence was entitled to judgment.

The record in this case shows certain facts to exist that are necessarily decisive of the action, which do not fall within the assignments of error nor the theories upon which the case was tried below. The briefs on appeal follow the theory of the trial. As we held in Munger v. Boardman, 53 Ariz. 271, 88 P.2d 536, and International Life Insurance Co. v. Sorteberg, 70 Ariz. 92, 216 P.2d 702, 706:

'* * * when the record in a case on appeal shows affirmatively that certain facts exist sufficient to determine an issue which though not specifically presented and tried out in the lower court is necessarily decisive of the action, we will consider and determine the appeal upon that issue, notwithstanding it was never formally raised or litigated in the lower court.' International Life Insurance Co. v. Sorteberg, supra.

It is the general rule that appellate court will not consider a question not first raised in the lower court but this court said in the case of Town of South Tucson

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v. Board of Supervisors, 52 Ariz. 575, 84 P.2d 581, 584, '* * * this is merely a rule of procedure, and not a matter of jurisdiction. * * *'

'One of the exceptions to the rule is questions of a general public nature, affecting the interests of the state at large, and this is particularly true when the question raised for the first time is one of substantive law which is not affected by any dispute as to the facts of the case, for under such circumstances the parties may present the issue as thoroughly in the appellate court as it could have been ...


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