H. W. BLAINE, d/b/a Blaine Realty Company, Appellant,
George W. STINGER, Marie Stinger and Mary Polk, Appellees.
Paul H. Primock, Phoenix, for appellant.
[79 Ariz. 377] Westover & Mansfield, Yuma, for appellees.
This is an appeal from a judgment in favor of defendants in an action wherein plaintiff sought to recover commission for the sale of real and personal property listed with him by the defendants.
The facts are that on or about October 27, 1952, George Stinger, one of the defendants, gave plaintiff, H. W. Blaine, an exclusive listing for the sale of a number six liquor license, bar, service station, etc., and lodge consisting of seven cabins, known as the Mohawk Lodge, located 57 miles east of Yuma, Arizona, for the total price of $37,500. Included in said listing is a notation in handwriting: stock and equipment, $10,000-10% commission, $27,500-5% commission. Just what is meant by 'stock and equipment' is nowhere made to
appear in said listing. The liquor license stood in the name of Mary Polk, mother-in-law of George Stinger. The remainder of the property stood in the name of George W. Stinger and Marie Stinger, his wife. Stinger and wife joined with Mary Polk in signing the contract of sale of the liquor license.
The listing agreement between George W. Stinger and the plaintiff provides in part:
'Stock and equipment $10,000-10% Com. This contract to cintinue until Feb. 1, 1953, and thereafter until terminated by me or us giving you notice in writing; and I or we agree to pay you a commission of 5% of the sales price in the event you produce a purchaser in accordance with the above terms and conditions or in the event a sale is made by me or us through any other agent during the term of the exclusive listing, or within 90 days after the expiration of said period a sale is made to any person to whom the property has been shown by you.'
On or about January 8, 1953, a meeting was held at Mohawk Lodge by the plaintiff, Blaine; George and Marie Stinger; Kenneth Haydis, the prospective purchaser; and an employee of plaintiff, D. C. Hales. At that time the written agreement in question was executed by Mary Polk, George Stinger and wife and Kenneth G. Haydis. This contract provided for the sale of the liquor license only, for the sum of $20,000 to be paid as follows: $5,000 immediately as earnest money, $10,000 on completion of the transfer of liquor license, and $5,000 by note to be amortized over a period of five years, the sellers agreeing to sell the license on the terms and conditions provided in said agreement and to pay plaintiff a commission of $1,500 therefor. the contract further provided in part that:
'* * * Seller has 2 weeks to investigate Buyer's Financial Integrity. If dissatisfied, other financial arrangements are to be made. Buyer to pay investigation fee, not to exceed $25.00.'
[79 Ariz. 378] This contract was signed by all the parties lefendant and accepted by Kenneth G. Haydis.
On January 24, 1953, a contract for the sale of a small government lease, The Mohawk Lodge with all buildings, equipment and tow-truck and Post Office was made between George Stinger and wife and Alvin M. Clark, providing insofar as material here that:
'This deal is contingent upon the transfer of the #6 Liquor license from Mary Polk to Kenneth Haydis being consummated.'
The defendants employed an attorney, William H. Westover of Yuma, to which Haydis agreed, to make an investigation of the 'financial integrity' of Kenneth Haydis. He did so, and came to the conclusion that his financial integrity did not justify the acceptance by defendants of his $5,000 unsecured note, on the balance of the purchase price of the liquor license, and reported the same to the Stingers.
Thereafter, George Stinger contacted the plaintiff and informed him that Haydis' financial integrity was not satisfactory and that he could not accept his unsecured note of $5,000 on the balance of the purchase price of the license. Stinger at that time notified plaintiff that if Sam Haydis, the father of Kenneth Haydis, would co-sign the note with his son, he would accept it. Plaintiff thereafter notified Stinger that Sam Haydis refused to co-sign the note with his son. Thereupon, Stinger, in a further endeavor to reach an agreement upon other financial arrangements which the contract provided should be made, procured the preparation of written restrictions on the liquor license which provided in effect that in the event the purchaser, Kenneth Haydis, did not perform the contract according to its terms, the liquor license was to be transferred to defendants. It further provided that the liquor license was not to be transferred without the consent of Mary Polk. Stinger enclosed this document in a letter written to plaintiff on January 15, and requested ...