S. Marvin JAMES and Audrey James, husband and wife, Appellants,
Russell HILLER, Appellee.
[85 Ariz. 41] James M. Howsare and Robert F. Miller, Tucson, for appellants.
Udall & Udall, Tucson, for appellee.
Russell Hiller, plaintiff below and appellee herein, sued S. Marvin James and wife to recover a real estate commission in the sum of $3,500 for causing the sale of defendants' property located in Tucson, Arizona. The trial court rendered judgment for the plaintiff in the amount claimed. Defendants appeal.
The controlling facts are that plaintiff is a real estate broker with offices in New Mexico and is licensed by that state to transact such business therein but is not licensed by the state of Arizona. In Tucson the parties apparently had orally understood that plaintiff was to attempt to sell defendants' Tucson property. Thereafter in New Mexico defendants executed a written listing authorizing plaintiff to sell the Tucson property for the price of $125,000. Plaintiff worked up a deal with one Ek, a resident of New Mexico who owned some properties therein, whereby Ek was to acquire the Tucson property, trade his New Mexico properties and pay defendants the balance. This deal resulted in a written contract entered into and executed in New Mexico between the plaintiff, defendants and Ek and his wife, whereby each of the owners agreed to convey their respective properties and Ek would pay defendants $87,000 in monthly instalments, the contract
for transferring the Tucson properties to be escrowed in Tucson.
The contract executed by the parties in New Mexico contained the following provision:
'F. That the parties of the first part (James) shall pay Harper-Hiller Co. of Albuquerque, New Mexico the sum of $5,000.00 as commission which parties of the first part agree to pay as outlined in Letter of Agreement dated May 24, 1954.'
Bearing the same date as the contract, May 24, 1954, the following letter signed [85 Ariz. 42] by the defendant S. Marvin James was delivered to plaintiff:
'Dear Mr. Hiller:
'Pursuant to the agreement prepared by your company between the writer and Alvin B. and Pauline Ek covering the exchange of the Desert Sands Motel in Tucson Arizona for certain properties owned by Mr. and Mrs. Ek in Albuquerque, this will serve to confirm our understanding with regard to commissions due you as a result of this transaction.
'It is agreed as set forth in the agreement between the parties concerned that your total commission will be the sum of $5000.00. The sum of $1500.00 will be paid to you in cash as the time of the closing of this transaction. The balance of $3500 will be due and payable to you in the following manner;
'It is mutually agreed and understood that I am to receive a net amount of $30,000 for my equities in the properties in Albuquerque being obtained from Mr. & Mrs. Ek. and that this will constitute your option and exclusive right to sell these properties until Jan 1 1954 on a basis wherein you will receive the first $3500.00 in cash from the sale of these properties with the usual 5% commission to apply above this net figure on any sales, or, in the event that their sale is not consumated (sic) before Jan 1st. 1954, the following will apply;
'Mr. and Mrs. Ek have been instructed by letter under date of May 24, 1954 with copy to you, that in the preparation of their monthly accounting statement of operations to me, that, any and all payments which they make after November 1, 1954 over and above the stipulated monthly payments in the contract to me are to be paid to you until the sum of $3500.00 has been paid. However, this will not apply of course in the event that that (sic) the property is sold as outlined above in which event you will have already recovered the amounts due you.'
The deal was consummated as agreed and the parties took possession of their respective properties and the plaintiff was paid, to apply on his commission, the sum of $1,500 as agreed in the letter. Thereafter Ek defaulted and defendants repossessed the Tucson property but refused to pay ...