[83 Ariz. 57] I. B. Tomlinson, Bisbee, for appellant.
Henry W. Beumler, Douglas, for appellee.
UDALL, Chief Justice.
The sole assignment of error is that the trial court-after plaintiff had rested his case in chief-abused its discretion in refusing to permit a reopening of the case and allow plaintiff to again take the witness stand and testify as to certain material facts.
To properly evaluate this assignment it is necessary that the pertinent facts be set forth. Appellant, Harold Bowman, as plaintiff, brought an action in the superior court against defendant M. S. Hall (appellee),
upon the following subscription contract, viz.:
'Community Mausoleum 'Protector of the Human Body'
December 30, A.D. 1954
'I hereby subscribe for 2 crypts Nos. 9-10 in the Mausoleum to be erected in or adjacent to the Douglas Calvary Cemetery and agree to pay to Harold Bowman or order for the same the sum of $350.00 for each crypt as follows: One third when the foundation is in, one third when the stone is on the ground, one third when the Mausoleum is completed according to plans, specifications or photographs number (s) similar to Photo No. 9.
'This subscription is given with the understanding that sufficient subscriptions shall be secured to warrant the building of the Mausoleum. Otherwise [83 Ariz. 58] it is void. It is also given with the agreement that if the required number of subscriptions are secured the building to be started as soon as material can be gotten on the ground, or as soon thereafter as the weather will permit and shall be completed within two years from date canvass is closed.
'Pltfs Ex 1
M. S. Hall.'
The complaint alleged that no part of the said $700 had been paid by defendant, though demand had been made therefor. Defendant by his answer admitted the execution of the contract but for ...