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Eggerth v. Forselius

Supreme Court of Arizona

May 21, 1957

A. M. EGGERTH, Appellant,
v.
Arth R. FORSELIUS and Merriel A. Foreselius, his wife, Appellees.

[82 Ariz. 257] Marks & Marks, Phoenix, for appellant.

W. J. Richmond and Emmett R. Feighner, Phoenix, for appellees.

WINDES, Justice.

Appellees, Arth R. Forselius and Merriel A. Forselius, hereinafter designated plaintiffs, filed a complaint against A. M. Eggerth, hereinafter designated defendant, alleging in substance that plaintiffs and defendant entered into a contract in August, 1952, wherein plaintiffs agreed to purchase and defendant agreed to sell certain real property for the price of $17,000; that the building thereon was not completed; and that in said purchase and sale agreement defendant agreed to complete such construction. The complaint also charged that defendant violated his agreement to finish construction of the building and sought damages. It was further alleged that defendant was a contractor and builder. [82 Ariz. 258] Defendant by answer admitted the contract of sale, the contract price, the existence of the partially-constructed building, that defendant was a contractor and builder, and denied any breach of the contract. Defendant likewise filed a counterclaim stating that he was a duly licensed contractor; that he contracted with plaintiffs to do certain work (which amounted to completion of the building); that there had been retained by the Phoenix Title and

Page 965

Trust Company as escrow holder the sum of $1,000, which was a part of the purchase price and which was to be paid defendant when the work was completed; and that defendant completed the work as agreed but plaintiffs refused to instruct the escrow holder to pay defendant the money. The counterclaim further stated that defendant had filed a mechanic's lien and prayed judgment against plaintiffs for the $1,000 and foreclosure of the lien. Thereafter, plaintiffs filed motion for summary judgment upon the counterclaim, supported by affidavit to the effect that defendant was not a licensed contractor at the time the contract was made and the obligation arose. On June 9, 1955, the court granted the motion for summary judgment. On June 10th, defendant moved for leave to file an amended answer and counterclaim. On June 14th, the court granted request to file the amended answer and denied leave to file the amended counterclaim.

The amended answer eliminated the allegation of filing a mechanic's lien and pleads the following letter dated January 21, 1953:

'Mr. A. M. Eggerth

1776 Mitchel Drive

Phoenix, Arizona

'Dear Mr. Eggerth:

'The inside of the house at 1711 West Whitton is perfectly acceptable to me as it stands at this date if you will finish the kitchen doors, lay title floor in kitchen & laundry, and touch up paint where needed-Mr. Eggerth shall be the sole judge of where paint is needed.

'The exterior of the house shall receive two coats of white paint on woodwork and sash. Sidewalks will be built to front door and around to back doors. The carport shall be erected as follows-A 20 X 24 slab with storage wall along west side-roof as on carport at 1715 West Whitton.

'Yours very truly,

'/s/ Arth R. Forselius'

The amended answer further states that the $1,000 mentioned in the first answer was left with the escrow holder pending completion of the work mentioned in the letter; that defendant had completed the work in accordance with it; and prayed that plaintiff take nothing and for judgment in defendant's favor for the $1,000. The amended[82 Ariz. 259] counterclaim which the court denied the right to file merely alleged the sale, the ...


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