[90 Ariz. 203] Charles Christakis, Phoenix, for appellant.
Trew, Woodford & Dodd, Phoenix, for appellee.
CHARLES P. ELMER, Superior Court Judge.
In this action the appellant, who was the plaintiff below and will be so referred to,
sued the appellee, defendant below, in two counts arising out of the same transaction.
The first count is for rescission of a contract made on June 8, 1956, involving the sale of certain real property by defendant to the plaintiff. Plaintiff alleged in his complaint that while prior to institution of the action, he fully performed all obligations of the contract, the defendant breached the same by failing to install a gas meter to service the property as promised.
Plaintiff also alleged that defendant had orally promised to construct a road or street which would abut and pass by the subject property in order to provide ingress and egress therefrom, but that defendant, despite repeated demands, failed and refused to perform.
Plaintiff's second count was based on an alleged fraud, charging in the complaint that defendant had falsely promised and agreed to build the road and to furnish and install the gas meter but that in truth and in fact he never intended to and did not do so, resulting in damages to the plaintiff in the sum of $2,000.00, for which he sought judgment, together with punitive damages, costs of suit and other proper and just relief.
After the pleadings were read to the jury, defendant moved to dismiss the first count [90 Ariz. 204] upon the ground that plaintiff sought thereby to have the contract of sale cancelled. In support of this motion defendant argued that if plaintiff actually sought cancellation, he thereby waived all rights and obligations of the parties. Thereupon, plaintiff moved to amend the first count to show he actually sought rescission. This motion was granted and the motion to dismiss denied.
The cause then proceeded to trial but when plaintiff rested, defendant moved for a directed verdict. Plaintiff thereupon asked permission to amend his complaint to conform to the evidence in order to allege a claim for money had and received, for rescission and damages for misrepresentation. Plaintiff also requested that he be allowed to reopen his case so that he might supply additional proof of expenditures incurred by him in reliance on the contract.
Plaintiff's motions were denied and the defendant's motion for a directed verdict was granted. Judgment was duly entered on this verdict in favor of the defendant and against the plaintiff. After denial of plaintiff's motion to set aside the judgment and for a new trial, this appeal followed.
On appeal, the plaintiff has assigned seven errors, some of which can be discussed together, and all of which are considered herein.
Before proceeding to consideration of the assignments of error, it would appear that a brief review and comment on the evidence is in order. The transcript of the testimony shows that plaintiff was ill-prepared to testify in this case as a witness on his own behalf so far as having any documentary proof of expenditures made by him in connection with the contract of purchase. Indeed, the correctness of the trial court's denial of his application to amend his complaint so as to convert the first count into a claim for money had and received becomes readily apparent when we consider his unsupported guesses as to moneys laid out by him for the purchase of gaspipe, as only one example.
The evidence does show that the parties entered into escrow agreement with Lane Title & Trust Company, which provided, in ...