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Home Builders & Suppliers v. Timberman

Supreme Court of Arizona

April 30, 1953


[75 Ariz. 338] Scruggs, Butterfield & Rucker, of Tucson, for appellants.

Silver & Silver, of Tucson, for appellee.

UDALL, Justice.

This is an appeal from a judgment of $4400 entered jointly and severally against the appellants Home Builders and Suppliers, a corporation, and J. W. Anderson and Magel Anderson, his wife, and in favor of appellee Agnes Clark Timberman. A supersedeas bond was posted by appellants.

The case was tried to the court sitting without a jury, following a pre-trial conference. The court made findings of fact and conclusions of law in addition to filing a memorandum opinion, hence we are fully advised as to the basis for its judgment.

The facts out of which suit arose are as follows. In June, 1948, appellee owned Lots 9, 10, 11, 14, 15 and 16 in Block 7 of Plumer and Steward Addition No. 2, Pima County, Arizona. Appellant Home Builders

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and Suppliers, of which appellant J. W. Anderson was president, was engaged--along with its retail business--in building houses, duplexes, etc., on contract and for speculation.

The inadequate instruments involved in this litigation were prepared by a layman, H. Cowan Drachman, realtor. He represented both parties in he negotiations resulting in the contract and later for a time when differences developed. The parties actually met for the first time at the trial. Much of the controversy and probably all litigation could have been avoided but for this attempt on the part of the broker to act as a lawyer for the parties in drawing these various instruments. When an unskilled person is employed or allowed to advise in such an important matter, trouble is likely to arise.

The negotiations leading to the execution of the contract in question are stated below.

Omitting everything that is not pertinent from the preliminary sale agreement form used, J. W. Anderson individually, on June 11, 1948, offered to construct a duplex on appellee's Lot 9 for a given price and to accept appellee's equity in the remaining five lots as the down payment. Other particulars are as follows:

'Received of J. W. Anderson Purchaser, * * * as part of the purchase price of the following described property:

[75 Ariz. 339] 'Lots 10, 11, 14, 15 and 16, Block 7, of Plumer and Steward Addition, Tucson, Arizona.

* * *

* * *

'Price shall be Seventy-One Hundred and No/100 Dollars ($7,100.00). Terms shall be as follows: $7,100.00 cash on closing sale (which includes above deposit).

'Subject to:

'1. The Seller entering into a contract with the Buyer to construct a duplex on Lot 9 of Plumer and Steward addition for a price of $15,500.00, which shall include all utility connections (water, gas and electricity) and landscaping valued at not less than $300.00.

'2. That the Purchaser will furnish, or cause to be furnished, a FHA Loan or get another loan of not less than $9,600.00 with interest at not more than five and one-half percent (5 1/2% and with the monthly payments, including interest, not to exceed $96.00 per month.

'3. That the duplex will consist of not less than 1300 square feet and will be built according to approved plans and specifications, a copy of which will be made part of this agreement.

'4. That Purchaser will furnish a completion bond. * * *'

The offer was not accepted as submitted but appellee made a counter offer, the salesman writing in longhand on the back of the instrument the following, viz:

'This agreement as above stated is acceptable with the following exceptions--that the undersigned will give and the seller of Duplex will take back a contract of Sale the amt. of which will be the difference between sale price of duplex and my equity in lots, being transferred, plus all incidental fees. Said contract will be for one year bearing int. at 6% per annum & payable approx. 1% per mo. on the unpaid balance.

Agnes Clark Timberman

Witnessed 12 June 1948

L. V. Roberson.'

There is no evidence that the counter offer was ever accepted by appellant Anderson. The court, therefore, properly found as a matter of law that there was no contract as a result of these preliminary negotiations. After the offer and counter offer, and before the contract hereinafter set forth was executed, discussions relative to appellants' proposed undertaking to furnish an F.H.A. or other mortgage of $9600 resulted in a decision whereby appellee would transfer the title of Lot 9 to appellant Home ...

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