Rehearing Denied Sept. 26, 1961.
[89 Ariz. 375] Udall & Udall, and Paul G. Rees, Jr., Paul J. Cella, Tucson, for appellant.
Norman S. Herring, Darrel G. Brown, Tucson, for appellees.
This is an appeal wherein appellant (hereinafter called plaintiff) sued appellee Martin (hereinafter called vendor) and appellees Schiffman, Haas, and Ryan (hereinafter called vendees). The vendor, Louise Martin, owned a tract of land west of Tucson and during the months of May or June of 1955 had shown plaintiff Daru, a New York attorney, the land in question, advised him of certain restrictions on the land, and also told him of additional supplemental restrictions which she intended to place on the land before sale.
Several weeks thereafter on Thursday, July 21, 1955, plaintiff called vendor from New York City suggesting that she give a friend of his in New York, who vendor understood was one Emanuel A. Perry, an option to purchase her property. Later that same day vendor wired plaintiff to the effect that since his buyers were out of town for the weekend anyway, she wanted to give the matter more thought.
Plaintiff called vendor again on July 22, 1955, and as a result of his persuasion vendor sent to one Emanuel A. Perry, in care of plaintiff, a nightletter which read as follows:
Emanuel A Perry. Care Robt Daru--292 Madison Ave NYK
Seller will accept two hundred dollars to hold parcel of land, 160 acres more or less comma subject to restrictions until August eighteenth fiftyfive period if tract is not bought as package on or before August eighteenth said twohundred dollars is automatically forfeited to seller and in addition buyer [89 Ariz. 376] agrees to lend seller without interest for a period of ninety days the necessary amount required to pay the balance not exceeding thirtysix hundred dollars due on sellers city water assessment period total price twentyfive thousand dollars for above package terms sixtythree hundred dollars down balance twohundred dollars per month on contract five percent prepayment clause buyer to pay customary onehalf closing
fee and onehalf bank escrow fee please confirm----
209 N Tucson Blvd----'
Saturday, July 23, 1955, vendor was offered slightly more for her property by another party. Not having received any acceptance from her offer of the night before she decided to withdraw the same from Emanuel A. Perry. Vendor called plaintiff telling him that she wanted to withdraw her offer. Plaintiff said the confirmation had already been sent airmail. Vendor said that if the confirmation had not been mailed prior to their conversation the deal was off and the postmark would determine it. (At the trial of the cause this issue was resolved in favor of the vendor.)
Thereafter negotiations continued between plaintiff and vendor by letter and by wire. On August 5, 1955, plaintiff sent vendor a letter refusing the unrecorded restrictions saying 'of course restrictions of record stand. If you wish to impose others I cannot commit but if they are fair to property I will ask buyer's consent.' The 13th of August plaintiff wrote the Arizona Land Title & Trust Company refusing restrictions of the July 22, 1955 offer, saying '* * * if vendor wishes to incorporate any restrictions other than those of record I have already informed her of my position with respect thereto as appears by the enclosed copy of nightletter sent August 5, 1955, from York Beach, Maine * * *.'
August 15, 1955, vendor's counsel wrote plaintiff telling him that since no agreement was reached as to the restrictions vendor did not wish to enter into a contract for the sale of the property. August 19, 1955, plaintiff wrote vendor's attorney stating he had expenses involved--had received a long-distance 'phone call collect and that vendor would be held to her commitments.
August 22 vendor's counsel wrote to plaintiff telling him '* * * as it was impossible to come to any agreement of the minds vendor had decided to sell her property to another purchaser.' Although vendor had an offer for a better price for the property in question she wired August 31st to the plaintiff advising his friend of the original terms. She thereupon insisted upon the original restrictions and demanded '* * * if your friend wants to buy my land on foregoing terms and conditions have him send letter of acceptance, signed by [89 Ariz. 377] interested purchaser and any other interested persons. Advise by western union immediately if above terms are acceptable or not and send letter or statement addressed to me personally, 209 North Tucson Blvd. by airmail special. Final closing will be held in abeyance until above said letter is received by me but not later than September 3rd.'
Plaintiff again refused to disclose the principals to the transaction and refused to reduce to a certainty the matter of restrictions which, among other things, had prevented a meeting of the minds. He answered this last wire on September 1, 1955, stating '* * * not authorized to undertake new negotiations or renegotiations or new acceptance but to put you at ease I can personally assure you restrictions you want will be accepted, * * *.' However, There is no recorded evidence that the above-mentioned restrictions ever were accepted. On receipt of the telegram vendor being dissatisfied therewith and particularly with the terms 'new negotiations' or 'renegotiations' negotiations' and 'new acceptance' terminated the negotiations by letter to plaintiff dated September 7, 1955. She thereupon entered into a contract to sell the property in question to vendees.
After the trial court ruled against plaintiff, he made the usual motion to vacate the judgment and for a new trial. The trial judge retired from the bench after judgment was entered and a motion was presented to another judge especially assigned for the purpose of ruling on the motion. The judge assigned to the case for the purpose of passing on the motion, denied it. Plaintiff contends that the trial court erred in denying plaintiff's motion to vacate judgment and for a new trial on
the ground that having determined he was incapable of considering the motion on the merits of the grounds therein alleged and having refused to review the trial and related proceedings, the judge was without discretion or abused his discretion in refusing plaintiff a new trial.
Rules of Civil Procedure, Rule 63, 16 A.R.S., states:
'If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these Rules after a verdict is returned or findings of fact and conclusions of law are filed, than any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties. If such other judge is satisfied that he cannot perform those ...