Donald H. TENNENT and Eleanor J. Tennent, husband and wife, Appellants,
Steve LEARY, dba Steve Leary Co.,; James Kesicki and Wands Kesicki, husband and wife, Appellees.
[81 Ariz. 244] Arthur Goldbaum and Jo Ann D. Diamos, Tucson, for appellants.
John W. Ross and Paul J. Cella, Tucson, for appellees.
This is an action to recover the sum of $1,500 earnest money paid to Leary by plaintiff Tennent in a real estate transaction wherein Tennent and his wife submitted to Leary, a real estate broker, a written offer to purchase a residence listed for sale with him by one James C. Kesicki. Both Kesicki and Leary were made party-defendants. The court entered judgment for defendants from which plaintiff appeals. The parties will be hereinafter designated by their last names.
The evidence does not disclose the sale price for which the property was listed with [81 Ariz. 245] Leary but the testimony of Kesicki justifies the inference that it was listed at $17,500. Tennent's offer, which was made in writing, was for the sum of $17,000, upon the condition that Kesicki, at his expense, would install a new 5,000 C.F.M. cooler with water pump and run a gas line ready for meter hook-up. This offer was executed on November 17, 1953 following a visit by Tennent and wife to the premises involved on November 15 or 16, at which Leary was holding an open-house for the purpose of contacting prospective purchasers.
Mrs. Cameron, a licensed real estate agent, working for Leary, met the Tennents while they were visiting the premises involved. On November 17, at about eleven o'clock at night, the Tennents executed the written offer here involved and delivered it to Leary, together with their check for $1,500 as earnest money.
On the next morning, November 18, Mrs. Cameron presented the offer to Mr. Kesicki for acceptance and he endorsed on the back thereof the following:
'November 18, 1954
'We agree to the sale of the abovedescribed property at the above terms except for the following: We will install a new cooler of not less than 5000 C.F.M. and water cooler at purchasers' expense. Purchaser to pay for cooler at cost price to builder $170.00 approximately.'
Thereafter on the same day Tennent was informed by a meassage sent to his home by Mrs. Cameron that his presence was desired at Leary's office concerning developments relative to his offer to purchase the Kesicki property.
He went to the office at 2:00 or 3:00 o'clock p. m. on the 18th. He was then informed by Mrs. Cameron that Mr. Kesicki had rejected his offer and had made a counteroffer as above set forth. After discussing the matter for a few minutes they then went into Leary's office, where, among other things, the following respective statements were made:
Mrs. Cameron testified that:
'Mr. Leary told Capt. Tennent that I (Mrs. Cameron) would go back as soon as Capt. Tennent-* * * I would go back to Mr. Kesicki and I would keep on working and trying to get the house for him since he wanted it, at his own terms, and that means including a cooler.'
She stated that as Capt. Tennent was leaving the office he picked up all four copies of his written offer of purchase and,
'* * * said he would show all of the papers to the lawyer, and that he would get in touch with us in an hour.'
[81 Ariz. 246] 'Yes, Mr. Leary said (to Tennent) it was all right for Capt. Tennent to take all of the copies of the offer, and I (Mrs. Cameron) said that if I were going to go back to Mr. Kesicki and get his signature I would need the original copy, So I took the original copy out of the batch and handed them back, handed the papers back to Capt. Tennent.'
Mr. Leary told Capt. Tennent his lawyer would find nothing wrong with the papers;
'Q. Capt. Tennent heard you state that you were going back to see Mr. Kesicki, did he? A. Yes, he did.
'Q. He was present at the time? A. He was present.
'Q. Did he object or tell you not to go back to Mr. Kesicki? A. He never said not to go back'.
She also testified that he never told her to go back. In other words, he never said to go back to Kesicki and he never told her not to go back although he knew she was going to go back and try to ...