David O. Brown, Mesa, for appellant.
Carl Tenney, Phoenix, for interpleader-defendant, appellee.
LA PRADE, Justice.
Appellant Porter (plaintiff below) is a licensed real estate broker who brought [77 Ariz. 34] suit to recover a realtor's commission claimed to have earned in selling defendants' property. He was denied judgment and brings this appeal.
Defendants listed their property with plaintiff on a so-called open listing for $13,500. On July 15, 1951, the ultimate purchasers, Mr. and Mrs. Fred Mitchell, arrived in Mesa, Arizona, from Iowa. On the morning of the 16th, in response to plaintiff's advertisement in a newspaper, they came to his office to inquire about properties for sale and after making known their wants, were shown several pieces of listed property by plaintiff's saleslady, Mrs. Kleinman. They were taken to the property of defendants, introduced to Mr. Ploughe, and inspected the property. Before going to the property the Mitchells had been informed as to the asking price. Later in the afternoon the Mitchells returned to the office of plaintiff and notified the saleslady they were prepared to make an offer for the property and desired to inspect it again. Their desires in this respect were met and the property was again inspected in the presence of Mr. Ploughe. On returning to the office the Mitchells authorized the saleslady to offer $11,500 and left a check for $1,000 as earnest money. The saleslady immediately called Mr. Ploughe on the telephone and informed him that she had an offer, with the request that he come to the office and discuss the matter, which he did. At this meeting he indicated that he would accept the offer if his wife would. The saleslady then went to the place of business where Mrs. Ploughe was working and informed her that she had a buyer and would like to discuss the matter. This conversation led to a conference held at 6 P.M. at the home of the Ploughes, where the counteroffer was communicated to Mrs. Ploughe, who declined to accept the offer and insisted on the asking price of $13,500. The next morning the earnest money check was returned as a consequence of the positive position taken by Mrs. Ploughe. Mrs. Kleinman then spent a couple of hours with the Mitchells showing them other properties. Mr. Mitchell testified that when they parted Mrs. Mitchell said to Mrs. Kleinman, 'See what can be done with those kids' (meaning the Ploughes).
Mr. Ploughe testified that on July 17th or 18th he listed the property with a Mr. Joe Jarvis, a realtor of Mesa, Arizona. Assuming that he did it made no impression on Mr. Jarvis, as will be seen. Jarvis met the Mitchells, and in connection with his business was showing them around Mesa with the idea of finding some property for them. While driving about they passed the Ploughe property, at which time Jarvis was informed by the Mitchells that they had seen the property through the services of Mrs. Kleinman and had attempted to buy it but with the statement that it was priced too high. Up to this time Jarvis had not informed the Mitchells that he had a listing on the property, nor had he suggested [77 Ariz. 35] showing it until he was aware of the Mitchells' interest in the property as a result of the services of Mrs. Kleinman. It was then that Mr. Jarvis suggested he might be able to get them together. On the evening of the 18th Mr. Jarvis took the Mitchells to the home of Mr. and Mrs. Ploughe, where the Mitchells again inspected the property. In relation to what happened at this meeting Mrs. Ploughe testified that she said to the Mitchells:
'There is no use fooling around about it--I want $13,500, and he (Mitchell) said, 'Well, we have to put in a new refrigerator in both apartments, and there is some repair work to be done,' and I said, 'All right, I will do this much, and that is all, I will come down $250.'' (Emphasis supplied.)
With reference to this same conversation and circumstances Mr. Ploughe testified:
'A. Well, we was trying to get together on whether they wanted to pay the price we were asking or not.
'Q. And what happened, did you get together? A. We did on the price
of--that we cut the price $250.' (Emphasis supplied.)
The Mitchells decided to think this over and returned to the office of Jarvis. After considerable conversation they finally concluded to buy at the new asking price of $13,250. The next morning Jarvis prepared a sales contract to that effect, which they and the Ploughes signed.
On the morning of the 20th the saleslady, Mrs. Kleinman, heard of the sale and went to the Ploughes and demanded the commission, which was refused. This suit was then instituted and the Ploughes interpleaded Jarvis. In their answer and complaint in interpleader they admitted they owed a commission fee but claimed they owed only one fee and were in doubt as to whom it was to be paid, and tendered the fee in court. The trial court at the close of the case was of the opinion that there existed a conflict in the evidence as to who was the procuring cause of the sale, and submitted the question to the jury on the following interrogatory:
'Was the plaintiff or his agent, Nina Kleinman, the procuring cause of the sale of the property described in the complaint?'
which was answered in the negative. The court on this special verdict entered judgment against the defendants in favor of Jarvis for $662.50 and costs, and directed this judgment be paid out of the funds in the hands of the clerk, theretofore deposited by defendants at the time they interpleaded Jarvis. The judgment further ordered that the defendants have judgment against the plaintiff on plaintiff's complaint and that they have their costs.
At the conclusion of the trial plaintiff made a motion for a directed verdict which was denied, and after the return of the [77 Ariz. 36] special verdict made a motion for judgment notwithstanding the verdict, which was denied. Likewise, a motion for a new trial was denied.
The following additional facts should be noted: On the evening of the 18th when the defendants, Mitchells, and Jarvis were all together, some conversation was had with reference to the defendants' possible obligation to plaintiff for a commission. Defendants voiced their concern over this possibility. Partly on the assurance of Jarvis that there was on liability to plaintiff, defendants signed the contract of sale wherein they promised to pay Jarvis a realtor's commission. We say 'partly' because in this behalf Mr. Ploughe testified as follows:
'Q. Would you have signed that agreement other than upon the assumption that Mr. Jarvis was lawfully entitled to it? A. Yes.'
To the same question Mrs. Ploughe said:
'I would have signed it, I think, because we wanted to sell the place.'
Mr. Ploughe then testified that he thought that Mrs. Kleinman was out of the deal because she had not returned. This 'thought' remained undisclosed and uncommunicated. The Ploughes did not notify plaintiff that they had reduced their asking price nor did they notify plaintiff that the negotiations for the sale of the property were 'off'.
The factual situation briefly summarized boils down to this: Defendants had offered their property to Mitchells for $13,500; the Mitchells countered by offering $11,500; this counteroffer was refused; the Mitchells then, for the third time, interviewed the sellers at their (Mitchells') suggestion to Jarvis of their interest in the property. At this meeting the sellers again insisted on their asking price of $13,500. Then upon the suggestion of the purchasers that they would have to make considerable costly improvements, the sellers reoffered their property for $13,250, which offer was accepted. The sellers voluntarily reduced ...