193 P. 756 | Ariz. | 1920
Lead Opinion
Action of assumpsit for work and labor done and performed by the plaintiff for the defendant, at his special instance and request, in and
“I have been trying to sell the Henrietta mine to the Big Ledge people, but the mine must stand the inspection of Mr. Shockley, their engineer. I have had a ‘racket’ with him and I cannot get them to go out and look over the property. You know these people, and I want you to get their engineer on the ground, and if I get $150,000 for it I will pay you $25,000 for your services, and if I sell it for less I will pay you very liberally, and in any event I will pay you for your trouble and expense.”
The plaintiff offered to prove also that he succeeded in causing the officers and the engineer (Shockley) of the Big Ledge Company to examine the mine, and that the defendant practically closed a sale of the mine for $100,000 and received a bonus or commission to himself of $25,000, and thereupon the defendant said to the plaintiff: “This is a good day’s work and I will pay you liberally.”
The defendant took the objection that the contract, not being in writing, was void, under the statute of frauds. The trial judge held the objection to be well taken and rejected the evidence and rendered judgment for the defendant.
We construe the contract as one of employment or agency rather than one to “sell real estate, mines or other property, for compensation or commission.” Statute of Frauds, paragraph 3272, subd. 7, Rev. Stats. Arizona 1913, as amended by chapter 135, Session Laws of Arizona of 1919. We would not be justified in straining the terms of the contract so as to bring it within the statute of frauds and thus do a great in
It is true that the plaintiff’s proposed testimony further tended to show that the plaintiff explained the merits of the property to Shockley, including that portion of the property which was inaccessible by reason of being under water or from, the tunnels, drifts, and shafts being caved in; hut these services seem to have been voluntary and merely incidental and collateral to the contract. The suit is not one to recover “compensation” or “commission” for the sale of real estate, hut to recover the reasonable value' of the services of the plaintiff as the agent of the defendant. That the pleader did not have a clear concept of the principles of law governing the facts of the case is apparent, and the complaint in this respect may stand in need of amendment; but no objection was made to the evidence on the ground of a departure or variance and that question is not before us.
The defendant accepted the benefits of the plaintiff’s services and practically completed the sale of the mine for $100,000 and received a bonus or commission to himself of $25,000. It seems to us that it would be highly inequitable to construe the contract so as to bring it within the provisions of the statute of frauds and thus enable the defendant to perpetrate a wrong, unless that is the only reasonable construction which can he given to the contract.
We do not think that the California cases (Aldis v. Schleicher, 9 Cal. App. 372, 99 Pac. 526, and Sellers v. Solway Land Co., 31 Cal. App. 259, 160 Pac. 175) should govern the present case. They were clearly suits instituted to recover ‘ ‘ commissions ’ ’ for the sale
We cite in support of our conclusions the cases: Wilson et al. v. Morton et al., 85 Cal. 598, 24 Pac. 784; Sherman v. Clear View Orchard Co., 74 Or. 240, 145 Pac. 264; Griffith v. Daly, 56 N. J. L. 466, 29 Atl. 369; Watters v. McGuigan, 72 Wis. 155, 39 N. W. 382; Carr v. Leavitt, 54 Mich. 540, 20 N. W. 576; Rose v. Hayden, 35 Kan. 106, 57 Am. Rep. 145, 10 Pac. 554. The facts of the cases cited may, and do, differ from the facts of the present case in several particulars; hut it is clear to us that the' principles of law running-through the cases are applicable to, and must control,, this case.
The judgment is reversed and cause remanded.
BOSS, J., concurs.
Dissenting Opinion
(Dissenting). — I cannot concur in the reasons given by the majority of the court for reversing the judgment. The testimony nowhere defines Rankin’s relation to the mine, the sale of which is involved; and, under the authorities relied upon, if he contracted as the owner the statute requires the promise to be in writing. If he contracted as the controlling stockholder of the owner, for and in behalf of such owner, then the promise was that of his principal, and not the contract of Rankin. In which last contingency the testimony offered should have been rejected for the reason it is not within the issues.
Why did Rankin say to Hall that the Braganza Mines Company owned the Henrietta mine and that he (Rankin) owned sixty-five per cent of the stock of that corporation, unless it was for the purpose of disclosing to Hall the principal for whom Rankin was
The plaintiff in this case has a clear remedy which he may enforce in the courts, if he was promised a portion of the compensation received by Rankin. Otherwise, if Rankin acted as the owner of the mine and employed the plaintiff to assist him in selling it, the contract of employment must be in writing.