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Union Interchange, Inc. v. Mortensen

Supreme Court of Arizona

November 22, 1961

UNION INTERCHANGE, INC., a California corporation, Appellant,
v.
James MORTENSEN and Florence Mortensen, his wife, Appellees.

In Banc.

Forquer & Wolfe, Phoenix, for appellant.

Christy, Kleinman, Peterson & Hoyt, Phoenix, for appellees.

BERNSTEIN, Vice Chief Justice.

[90 Ariz. 113] This is an action on a contract brought by Union Interchange, Inc., a California corporation, against James and Florence Mortensen, citizens of the State of Arizona, under a contract in writing, the material parts of which are as follows:

'I authorize you to advertise the sale of the above business or property and for that purpose reserve space as follows:

'You are to place the sales information on my business or property in the hands of hundreds of brokers throughout the nation by publication in the next issue of the U. I. Brokers Bulletin * * * also * * * in the next issue of the U. I. Buyers Digest.

'For this reserved space, I will pay you the sum of $400.00 at Los Angeles, California, three (3) months from the date of your acceptance of this advertising agreement, * * *.

'This agreement shall become effective only when accepted by your office in Los Angeles, California. You shall notify me of such acceptance by letter.'

The contract admitted into evidence indicated that Union Interchange, Inc., accepted the agreement at their office in Los Angeles on May 1, 1956, and performed under the contract by inserting the advertisement

Page 334

of the Mortensen property in five consecutive issues of U. I. Buyers Digest and in one issue U. I. Brokers Bulletin. The defendants Mortensen never paid for these services, whereupon Union Interchange, Inc., brought this action to recover $400 with interest and reasonable attorneys' fees and court costs.

The cause was tried to the trial court sitting without a jury. The trial court was not requested to, and did not, make findings of fact in giving judgment to the defendants Mortensen. Plaintiff's motion for new trial was denied and this appeal followed.

Two issues have been properly raised on appeal as to whether the trial court erred in granting judgment to the defendants. This court has held that in the absence of fact findings by the trial court, judgment thereof will be sustained if possible on any theory within the issues and supported by the evidence. Julian v. Carpenter, 65 Ariz. 157, 161, 176 P.2d 693, 695 (1947); Phoenix Safety Investment Co. v. James, 28 Ariz. 514, 237 P. 958 (1925).

The first issue presented is whether there was a contract between the parties. The record on appeal shows that the issues concerning this question were whether plaintiff had accepted the defendants' offer, and, if so, notified them of such acceptance.

To prove the acceptance of the contract the plaintiff introduced into evidence the contract signed by the defendant in Arizona and the plaintiff in Los Angeles, California. [90 Ariz. 114] At the time this contract was introduced the defendant objected stating:

'Mr. Peterson: I don't think proper foundation has been liad yet. It says in the agreement itself that it does not become effective until it is accepted in Los Angeles, California, and there is no showing it has been accepted there. I don't see it is valid ...


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