Civil No. 2317. | Ariz. | Dec 11, 1925
Appellant Love in a motion for rehearing reminds us that we were mistaken in refusing to consider assignment number six upon the ground that it had not been argued, and cites us to the place in brief where such assignment was taken up and argued in connection with assignment number three. Our oversight can be accounted for in part at least by the transposition of this assignment from the end of the brief, where in its order it belonged, to another part thereof, and to the further fact that it was treated in brief as depending upon the same law and facts as assignment number three. We were of the opinion when we stated that assignment number six was waived that it was good, and it would have been so held except for the fact that we thought it had been abandoned by appellant Love.
The facts show that Love was a promoter and an intermediary between the grantor, Continental Commission *359 Company, and grantee, Seventy-Nine Mining Company; that he took title in his name and agreed to pay the consideration for transfer mainly for the purpose of facilitating the deal and acquiring control of the future operation and development of the mining property. The consideration he agreed to pay consisted of three items, to wit, balance of purchase price of option $62,500; to assume the indebtedness of the Continental Commission Company, estimated at $60,000; and to advance for equipment and operating expenses $27,500, but in no event was he to pay more than $150,000.
The only ground for letting judgment go against Love must have been on his agreement to pay the debts of the old company. It is, we think, conclusively shown from the record that he had fully performed that part of his contract.
The judgment cannot go against Love as a trustee of creditors of the Continental Commission Company, since he parted with the title to mining claims by conveying such title to the Seventy-Nine Mining Company.
Appellant urges other points as ground for a rehearing but, inasmuch as they are either a reargument of propositions already considered or are raised for the first time, we refuse at this time to consider them.
The order of affirmance heretofore entered is modified to conform with what we have here stated; that is, the judgment should be reversed as to Love, but affirmed as to the Seventy-Nine Mining Company, and it is so ordered.
McALISTER, C.J., concurs. *360