SPEEDWAY ENTERPRISES, Inc.
HARTSELL et ux.
[75 Ariz. 37] Otho Books, Elmer W. Courtland, Tucson, for appellant.
Hummel & Hummel, Tucson, for appellees.
This is an appeal from a judgment entered by the trial court of Pima County sitting without a jury, in favor of appellees and against appellant and from the order denying appellant's motion for a new trial.
Appellant was defendant and cross-claimant below and appellees were plaintiffs and cross-defendants but for convenience will be referred to as plaintiffs and defendant as designated in the complaint in the trial court.
The facts are that plaintiffs were the owners of a tract of patented land with appurtenant forest grazing permit located in the desert about 18 miles east of Tucson known for many years as the La Cebadilla Ranch and later as the Carrillo Ranch, the Carrillos having owned and operated it for about 50 years. The Hartsells, at the time of the transaction here involved had owned the ranch approximately three years and
five months. The ranch was conveyed to them from the Carrillos by deed carrying legal descriptions showing the townships, range, sections, quarter sections, and lots with the exception of Lot 16, section 3, township 14 south, range 16 east, only a part of which was conveyed and was therefore described by metes and bounds. This deed was recorded and had been of record since September 20, 1945.
[75 Ariz. 38] In addition to a comparatively small acreage of patented land, the range carried with it subject to approval of transfer by the forest service, a grazing permit for 152 head of cattle on approximately 34,000 acres of desert land. The number of cattle permitted to be grazed thereon was subject to change by the forest service at any time.
The Hartsells listed the ranch for sale with Wilbur (Slim) Gruver, realtor, as including approximately 915 acres of deeded land and approximately 34,000 acres of forest permit subject to approval of the forest service. The list price for all of the holdings was $50,000, payable according to the terms set forth in the listing.
Mr. Cocioppo representing Speedway Enterprises, Inc., was contacted and taken upon the premises. He was driven over the Reddington Highway leading across the 34,000 acre forest permit tract and given a rough idea of the character of the land contained therein and its location. He was then returned to the ranch house where a jeep was procured to drive over the patented acreage. The jeep was used because, as testified by Mr. Stromei, the real estate agent, a lot of the land was rough and could not be traveled over in an ordinary automobile. Only a portion of said tract could be reached in the jeep. However, the corners of the deeded tract were pointed out to Mr. Cocioppo. The party also went as close to the boundaries of the deeded property as it was possible to go in the jeep. The tour over the property required about two hours. It was testified that there is plenty of water on the patented property but it was not stated whether there was plenty for stockraising or irrigation purposes. It was further testified that approximately one-third of this property or about 275 acres could be irrigated. By that it is probably meant that it was level enough to be prepared for irrigation. There has never been over 20 acres of the land under cultivation and there was only five acres being cultivated at the time of the sale to Speedway Enterprises, Inc.
At the time the property was shown to Mr. Cocioppo he stated that if Mrs. Hartsell could be persuaded to put in the equipment and the horses which he saw on the place (later sold for $4,500) he probably would be interested in buying the ranch. Mrs. Hartsell later agreed to include the horses and equipment for the original figure of $50,000 and on February 3, 1949, the preliminary contract upon which this cause of action rests, was signed by Speedway Enterprises, Inc., and Wilbur Gruver by his agent, Mr. Stromei, and on the next day personally accepted by Mrs. Hartsell as evidenced by her signature to which she attached a telegram from Mr. Hartsell stating (subsequent to a telephonic conversation with him) that he joined her in the acceptance of the offer of Speedway Enterprises, Inc. At the time the preliminary contract was signed Speedway Enterprises, Inc., deposited with the real estate agent $5,000 as earnest money. Mr. Hartsell later,[75 Ariz. 39] to wit on February 10, 1949, joined with his wife in executing a deed to Speedway Enterprises, Inc., covering the deeded property and bills of sale for the personal property, and joined in a waiver of the forest permits as required under the regulations of the forest service thus confirming his acceptance of the preliminary contract of sale as evidenced by his telegram. It developed that there were only 835.9 acres of patented acreage instead of 915 acres. Mr. Cocioppo sought an adjustment downward on the purchase price claiming $8,000 as a proper reduction. The Hartsells rejected this figure. Mrs. Hartsell at the time she sold the ranch believed there were 915 acres in the deeded acreage.
Considerable negotiations were carried on subsequently thereto between Mr. Cocioppo, Speedway Enterprises, Inc., and Mrs. Hartsell and her agent, and between counsel for the respective parties. These negotiations failed to result in an agreement of
any kind and on March 8, 1949, defendant gave notice in writing to Mr. Gruver of the cancellation by Speedway Enterprises, Inc., of the contract of purchase of the property involved and demanded a refund of the $5,000 earnest money theretofore deposited.
On April 5 following, plaintiffs made demand in writing upon Mr. Gruver, realtor, and upon Speedway Enterprises, Inc., for the $5,000 earnest money deposited and notified it that plaintiffs would sell the ranch to prevent further damages but would expect compensation from Speedway Enterprises, Inc., for all damages suffered as a result of the breach of its contract of purchase. Pursuant to said notice plaintiffs sold the ranch and all holdings included in the sale to defendant for $44,500 which was the most that she could obtain for it.
Plaintiffs brought this cause of action against defendant asking for damages for breach of contract. Defendant answered and counterclaimed asking for a refund of the $5,000 deposited.
The plaintiffs contend that the sale of the ranch to defendant was in gross and not by the acre and that they did not warrant any specific number of acres in the patented land and that the contract itself used the term 'approximately 915 acres'. The defendant, on the other hand, claimed a mutual mistake as to the number of acres in the patented tract and asserted that an 80-acre shortage is a material variance entitling it to cancel the contract and to a refund of its ...