Irving L. DIAMOND, dba Diamond Realty, Appellant,
Kenneth G. HAYDIS and Patricia A. Haydis, his wife, and Karl Mangum, Appellees.
[88 Ariz. 328] John H. Grace, Flagstaff, for appellant.
Mangum & Christensen, Flagstaff, for appellees.
This is an appeal from a judgment in favor of defendants in an action for commission claimed by plaintiff-appellant, a real estate broker, from defendants-appellees for alleged sale of real and personal property listed with him by the defendants-appellees, and from the order denying plaintiff's-appellant's motion to set aside the judgment or in the alternative the granting of a new trial. The parties will hereinafter be designated as plaintiff and defendants as they appeared in the trial court.
The facts are that on May 22, 1955, Kenneth G. Haydis, one of the defendants, acting for and on behalf of the community, executed a written listing contract with Diamond Realty authorizing the latter to sell as a real estate agent 'Ken's Cork N' Bottle,' a liquor store located at 636 East Santa Fe Avenue, Flagstaff, Arizona, for the price of $30,000 cash, plus approximately $2,500 inventory. The purchase price was to include the No. 9 liquor license, the fixtures and equipment, and the assignment of the lease from the landlord to the new purchaser.
The listing agreement between Kenneth G. Haydis and the plaintiff provided in the part material here:
'In the event that you [plaintiff], or any other agent or group of agents cooperating with you, shall find a buyer ready and willing to enter into a deal for said price and terms, or such other terms and price as I [defendant] may accept, or in the event of any sale, exchange, assignment or [88 Ariz. 329] transfer of said business, lease, (or leases, if any) and personal property, or any substantial part thereof, while your employment remains exclusive or that during your employment, whether on an exclusive, or non-exclusive basis, you place me in contact with a buyer to whom at any time within 90 days after the termination of said employment I may sell, assign or transfer said personal property, or any substantial part thereof, I hereby agree to pay you in cash for your services a commission equal to ten (10) per cent of the selling price.'
No purchaser was provided by the plaintiff who was ready, willing and able to enter into a transaction for the purchase of the said property on the terms set forth in the listing contract. On July 27, 1955, the plaintiff presented two purchasers, namely, Charles H. Gilleland and Dorcas L. Waterman, to purchase the liquor business upon terms which varied from the listing contract and which were set forth in the instrument known as 'Purchase Contract and Receipt' which is a document in the form of the usual real estate broker's agreement signed by him and by the seller and the purchaser. This written agreement provided for the sale of the liquor business to the purchasers for the total sum of $35,000 to be paid as follows: $1,000 immediately as earnest money, $16,500 on completion of the transfer of the No. 9 liquor license, and $18,000 to be evidenced by a note and chattel mortgage payable in installments over a period of 31 months.
The selling price included approximately $2,500 inventory. The purchase price was to be adjusted at the time of close of escrow in accordance with the actual inventory. The acceptance of this 'Purchase Contract and Receipt' was by its terms conditioned upon and subject to the following:
'This acceptance is conditioned upon and subject to agreement to
be executed by the seller and Sam Gallant & Co. whereby Sam Gallant & Co. agree to purchase from the seller the [$18,000.00] promissory note secured by the chattel mortgage and the restrictions on the license for the sum of $15,000.00, which said note, chattel mortgage and restrictions in favor of the seller said seller agrees to transfer, sell, assign and convey to said Sam Gallant & Co. for the amount indicated above.' (Emphasis ours.)
It sould be noted that the acceptance was not only made conditional but also expressly made subject to an agreement to be executed between the seller and a third party who was not a party to this sales contract. This agreement was signed by the purchasers, the sellers and the plaintiff. On July 28, 1955, the 'Purchase [88 Ariz. 330] Contract and Receipt' was amended. This amendment in its material part provided:
'* * * all endorsements and assignments made by Seller to Sam Gallant & Co. shall be without recourse on Seller and the purchase of Seller's interest by Sam Gallant and Co. shall be made upon close of escrow.
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'This agreement is subject to seller's approval of the escrow arrangement.'
The agreement as amended was signed by the purchasers and the sellers, and at the time the amendment was signed both Mr. Schwenke, representing the plaintiff, and Sam Gallant were present and then knew of the seller's requirement that ...