[75 Ariz. 299] Frank J. Barry, of Tucson, for appellant.
Nasib Karam, Duane Bird and Thomas L. Hall, of Nogales, for appellee.
Landon Young, plaintiff-appellant, appeals from a judgment entered in the superior court of Santa Cruz County denying him relief upon his complaint against the Border Broadcasting Co., Inc., a corporation, defendant-appellee, and awarding judgment to defendant on its first counterclaim in the sum of $1000 and costs, and from the order of the court denying plaintiff's motion for a new trial.
The parties will be designated herein as plaintiff and defendant as they appeared in the trial court.
The facts are that since its incorporation in 1946 defendant has been the owner of broadcasting station KNOG in Nogales and engaged in radio broadcasting from that point. With the exception of one share of stock owned by Ruffo Espinosa, all the outstanding stock of the corporation was owned by Robert and Sam Marcus, father and son.
On May 31, 1949, Robert and Sam Marcus entered into an agreement with the plaintiff Landon Young wherein they agreed to sell and plaintiff agreed to buy all of their stock in defendant corporation for a sum certain to be paid for as therein provided. The agreement provided that the sale of the stock to plaintiff was made subject[75 Ariz. 300] to the approval of the FCC (Federal Communications Commission).
There was also incorporated in the contract the provisions that the Marcuses were to cause defendant corporation to enter into an employment agreement with plaintiff for a period of one year upon the terms and conditions expressly defined in said written agreement as follows, to wit:
'3. To cause said Border Broadcasting Co., Inc. to enter into an employment agreement with said party of the second part whereby he shall be employed for the period of one (1) year from June 1, 1949, as General Manager of said corporation at a monthly compensation equal to the amount of the excess, if any, of receipts over disbursements including monthly liability to Graybar Electric Company, Inc., in the operation of radio station KNOG with the obligation on his part to pay to said corporation monthly the amount of the deficit, if any, between receipts and disbursements in the operation of radio station KNOG.'
and plaintiff therein agreed to enter into said agreement with defendant.
Plaintiff on the following day, June 1, 1949, assumed the duties of his employment by taking over the management and control of station KNOG and continued to perform the same until July 6 or 7 of 1949 when he notified the Border Broadcasting Co., Inc. by letter
'* * * that any connection I may have had with KNOG, as acting manager or whatever it was, is hereby terminated as of the close of business July 7, 1949.'
and in said letter plaintiff advised defendant that he had expended the sum of $1,557.70 for and on behalf of defendant and offered to accept the sum of $1,157.70 as settlement in full for such expenditures and threatened suit for more than $1,557.70 if payment was not forthcoming. The letter and demand were ignored by defendant and this action was instituted on July 11 following.
Plaintiff has presented six assignments of error for our consideration which when boiled down to final analysis are based (1) upon plaintiff's claim that the evidence was sufficient to sustain the allegations of plaintiff's complaint and to entitle him to judgment thereon; (2) that the court erroneously excluded evidence which should have been admitted and received evidence which should have been excluded; and (3), judgment
entered by the court on defendant's first counterclaim was based upon evidence erroneously admitted, and that the court should have granted ...