Millard M. DURHAM and Irma Jane Durham, his wife, Appellants,
Grover C. DOOD, Appellee.
Hall, Catlin & Molloy, Tucson, for appellants.
McCarty & Chandler, Tucson, for appellee.
[79 Ariz. 169] Action by Grover C. Dodd against Millard M. Durham and his wife, Irma Jane Durham. The parties will be designated herein as they appear in the trial court.
The plaintiff and defendant Millard Durham purchased a lumber mill and timber in California and were operating the mill under the firm name of Bodega Bay Woods Product Co. The litigation before us resulted from alleged dealings concerning this operation.
The complaint is in two counts, one for specific performance of an alleged contract to sell to the plaintiff real property designated as the Speedway frontage mentioned in the writing hereinafter set forth. The second count is for $12,000 upon a promissory note.
Defendant Millard Durham answered denying the obligation represented by the note and alleging he offered, without the consent of his wife, to allow plaintiff a $12,000 credit for his interest in the California
venture if plaintiff decided within three days to purchase the real property in Tucson; alleged the written instrument was without consideration and that the consideration had failed because plaintiff was unable to convey to the defendant the California property. He further answered that the executed instrument was conditional and plaintiff had failed to avail himself thereof. He also pleaded the Statute of Frauds. Mrs. Durham answered making the same denials and alleging she was not a party to the transaction and pleaded the Statute of Frauds.
At the close of the evidence, on motion made by the defendants, the plaintiff abandoned the first count and elected to ask for relief only on the indebtedness represented by the note.
Over defendants' objection the plaintiff was allowed to submit evidence to the effect that on September 17, 1952, the defendants entered into an oral arrangement whereby Mr. Durham agreed to take over whatever interest plaintiff had in the mill business and as consideration therefor Durham was to allow plaintiff to select one of two real properties located in Tucson and owned by the defendants. In connection with the deal Mr. Durham executed the following promissory note:
September 17, 1952
for value received, Millard M. Durham promise to pay to Grover C. Dodd, or order, at 2948 East Eighth St., Tucson, Arizona the sum of Twelve thousand dollars ($12,000.00), with interest thereon from date until paid at the rate of ___ per cent per ___, said interest payable _____, and both principal and interest payable only in current lawful money of the United States. And in case payment of this note, or any portion thereof, shall not be made at maturity, and suit be brought to enforce collection thereof, _____ further agree to pay the additional[79 Ariz. 170] sum of _____ dollars, in like lawful money, as and for an attorney's fee.
/s/ Millard M. Durham'
Attached to this note was the following memorandum signed by the ...