LANE et ux.
Third Motion for Rehearing Denied Jan. 15, 1953.
[75 Ariz. 2] Nasib Karam, of Nogales, for appellants.
Norman Herring, of Tucson, for appellee.
The original opinion in this case was handed down on March 31, 1952 and reported in 73 Ariz. 435, 242 P.2d 557. Appellee timely filed a motion for rehearing which was granted. The opinion on rehearing was handed down on July 17, 1952
and is reported in 74 Ariz. 201, 245 P.2d 1025.
In the original opinion this court reversed the judgment of the trial court, but upon rehearing affirmed that judgment. Appellants then filed a motion for a second rehearing, and this has been granted by virtue of the inherent power of an appellate court to 'revise, modify, and correct[75 Ariz. 3] its judgments.' 3 Am.Jur., App. & Err., Section 796, page 345. 4 C.J., Appeal and Error, § 2477, page 621; 4 C.J.S., Appeal and Error, § 1408. Metropolitan Water Dist. v. Adams, 19 Cal.2d 463, 122 P.2d 257.
E. C. Lane and Millie Lane, defendants below, and hereafter referred to as appellants, entered into an oral agreement to lease certain land they owned to Bob Mathews, a cotton farmer, plaintiff below, and hereafter referred to as appellee. It was agreed between the parties to this lease that the oral terms were to be reduced to writing by appellants' attorney, J. M. Jessen, who was present when the parties agreed to the terms of the lease and who took written notes thereof. Jessen prepared the lease and mailed three copies to the appellants, who read the lease and then delivered it to appellee for his signature. Appellee, who cannot read, had his wife read the lease to him, and not being satisfied that the lease contained all the provisions agreed to between the parties, he took the lease to one Alfred Putts, his financial backer. Putts, having read the lease, agreed it should be changed, so he and appellee went to Putts' attorney, Lloyd Helm.
Three paragraphs were added to the lease by Helm at the direction of Putts, in the presence of appellee. Helm's secretary removed the last page-numbered seven--of the original lease, and replaced it with a page containing an additional three paragraphs. At the bottom of this substitute page, numbered seven, secretarial marks appearing on the original page were copied together with the same date of the original.
The lease, containing the added provisions, was then signed by appellee and returned to appellants, with no mention being made of the changes therein. Appellant, E. C. Lane, testified he did not read the lease when it was returned but merely thumbed through the pages, checking each as to page number and secretarial marks. Then he signed the lease, as did his wife.
Appellee sued appellants in the lower court for breach of the lease, which he contends resulted in damages to his cotton crop. It appears that one of the provisions added to the lease required appellants to maintain the pumping equipment used for irrigation and make all necessary repairs thereon. The pumps became in disrepair, and some 200 acres of cotton were damaged as a result of insufficient irrigation.
Briefly, the jury found in answer to interrogatories submitted to them that (a) appellants did not know of the change in the last page of the lease when they signed it, (b) were not negligent in failing to reread the lease after it was returned by appellee, and (c) that appellants did not sign the lease as a result of any fraud on the part of appellee.
The lower court apparently found no grounds for reformation as requested in the [75 Ariz. 4] cross-complaint filed by the appellants, and ordered the trial to proceed on the question of damages from the breach of the lease. The jury returned a verdict in favor of appellee for $11,500, and judgment was entered thereon.
We have carefully read the testimony pertaining to reformation, and we find no legal basis for the lower court's refusal to submit to the jury an interrogatory submitted by appellants directly raising the question of what the true agreement was between the parties. We will discuss the possible grounds the lower court based its refusal upon inasmuch as the lower court did not make any findings of fact. It might have found negligence on the part of the appellants, regardless of the fact that the jury found the appellants to be free from negligence. The trial court has the right to disregard the findings of the jury in an equity case, as it is only advisory. Holman v. Roberts, 35 Ariz. 110, 274 P. 775. We cannot agree with this
suggested basis that the trial court found negligence on the part ...