Herman T. GRUMMEL, a Widower, and Margaret E. Burns, a married woman, Appellants and Cross-Appellees,
Ernest L. HOLLENSTEIN and Ruth F. Hollenstein, Husband and Wife, Appellees and Cross-Appellants.
[90 Ariz. 357] Curtis E. Weland and Cavanagh & O'Connor, Phoenix, for appellant.
Scott, Cavness & Yankee, Phoenix, for appellees.
From a judgment rendered in favor of the plaintiffs, both the plaintiffs and defendants appeal. The matter was tried by the court without a jury. The parties will be referred to as they appear in the trial court.
The essential facts are as follows: Defendants owned 640 acres of unimproved land in the Harquahala Valley in central Arizona. In addition, they held desert entry rights to an additional 480 acres of unimproved Federal land adjoining their fee acreage.
In the latter part of 1951 plaintiffs and defendants entered into an oral agreement whereby the plaintiffs agreed to sink an irrigation well in return for one-half of the defendants' acreage. It was further agreed that plaintiffs would be entitled to the use and production of the entire farm until they had fully recouped all of their investment.
The well was sunk, and thereafter the parties performed their agreement. In 1953 defendants conveyed one-half of the patented land (320 acres) to plaintiffs, so that the plaintiffs could buy out a partner who had originally been associated with them in the venture.
By early 1955 serious difficulties had developed between the parties, and in November[90 Ariz. 358] of that year plaintiffs filed suit against the defendants seeking (1) an injunction restraining defendants from interfering with plaintiffs' use of the farm until recoupment of all funds was made, (2) an accounting and dissolution of any and all relations between the parties, (3) a decree of specific performance, to require defendants to convey sufficient land to give effect to the contract. An amendment to the complaint sought additionally (4) to cancel a written lease between plaintiffs as lessees and defendants as lessors, and (5) damages for breach of contract, resulting in unjust enrichment to the defendants in the amount of $15,000.
During the course of the trial the parties entered into a written stipulation, the effect of which was to remove from the court's consideration the issues which have been designated (1), (2), (4) and (5), above. Thus, the only issue left for the court's determination was that concerning specific performance. At the conclusion of the case, the court entered a money judgment in favor of the plaintiffs in the amount of $40,000.
The defendants assign as error the court's failure to grant their motion to vacate and set aside the judgment, and their motion for a new trial on the grounds that:
(1) The pleadings and record did not permit the court to enter its judgment for money damages based upon breach of contract to convey land,
(2) The judgment was contrary to law because a material variance existed between the pleadings and the proof, and
(3) The judgment is not supported by competent evidence.
The stipulation, insofar as it is essential to the determination of the issues, reads as follows:
'NOW THEREFORE, in consideration of the ...