Crowe v. Trickey

This was an action brought by Crowe in the district court of Santa Cruz county, Arizona, against Trickey, administrator of the estate of N. H. Chapin, deceased, to recover the sum of $5,000 as commission on a sale alleged to have been effected by Crowe for Chapin, during his life, of a one-fourth interest in a mine. The case was tried by the district court without a jury, a jury having been waived by agreement of the parties, and that court made findings of fact and stated conclusions of law therefrom, upon which it rendered judgment in Crowe's favor, January 10, 1902, to be paid in due course of administration. From that judgment the case was carried by appeal to the supreme court of the territory of Arizona, which, March 20, 1903, reversed the judgment, and remanded the case to the district court, with directions to render judgment for defendant. 71 Pac. 965.

The record states:

'In the above-entitled action the supreme court finds the facts to be as follows:

'1. Previous to March, 1899, a mine known as the Pride of the West mine was owned by three parties. A man named Olsen owned one half thereof, and Norman H. Chapin, the defendant's intestate, and Jerry Neville each owned one fourth interest therein.

'In March, 1899, the plaintiff Crowe brought this mine to the attention of one Emerson Gee and his associate, A. R. Wilfley. Subsequently, in the latter part of March, 1899, Wilfley purchased Olsen's one-half interest, and made an agreement with Chapin and Neville, in pursuance whereof a deed to the remaining one-half interest was executed by Chapin and Neville, and placed in escrow, the terms of the escrow agreement providing that the deed was to be delivered to Wilfley upon the payment by him of the sum of $100,000 in cash, on or before the 1st day of April, 1900.

'2. It was verbally agreed between Crowe on the one part, and Chapin on the other, representing himself and Neville, that Crowe was to receive 10 per cent of the purchase money received by them for their interest in the mine, as commission for making the the sale. Such deed and escrow agreement were executed by Chapin and Neville on the 1st day of April, 1899.

'3. Prior to the 1st day of April, 1900, Chapin and Neville both died.

'M. M. Trickey was appointed administrator of Chapin's estate and one Henry H. Harmon was appointed administrator of Jerry Neville's estate.

'Wilfley failed to pay the money and take the property under his option, and after the 1st day of April, 1900, at the expiration of the time mentioned in the escrow agreement, and in accordance with the terms thereof, the deed in escrow was returned to Trickey, the administrator of Chapin's estate.

'4. Thereafter, and on the 7th day of April, 1900, upon the payment of $1,000 by Wilfley, the administrators of these two estates made another agreement with Wilfley, by the terms of which they agreed to execute a deed to a one-half interest owned by the two estates, upon the payment of the purchase price of $100,000, in specific amounts, on different dates therein expressed. This option also lapsed.

'5. After said lapse, and on the 19th day of June, 1900, M. M. Trickey, as administrator of the estate of Chapin, entered into another agreement which was offered in evidence by the plaintiff, and appears in the bill of exceptions as 'Exhibit 3.'

'By this agreement, Trickey, as administrator, gave to Wilfley an option to purchase chase the one-fourth interest in the mine owned by the estate of Chapin, and obligated himself to execute to Wilfley a deed for such interest upon the payment of $5,000 in cash, $5,000 within three months; the further sum of $5,000 within six months; the further sum of $5,000 within nine months; the further sum of $5,000 within twelve months; and the further sum of $25,000 within eighteen months.

'The plaintiff Crowe had nothing whatever to do with either of the last-mentioned options, or with the sale of the property after the death of Chapin.

'6. In pursuance of this option, Wilfley paid to Trickey the sum of $5,000 in cash on the 19th day of June, 1900; and the following sums on the following dates, respectively: $5,000 on September 19, 1900; $5,000 on December 19, 1900; $5,000 on March 20, 1901; $5,000 on June 17, 1901; $25,000 on December 7, 1901.

'7. The above-mentioned agreement (Exhibit 3) was only an option to purchase, and under it there was no obligation on the part of Wilfley to pay any portion of the purchase price, and no obligation on the part of Trickey to deliver the deed mentioned in the agreement until the last payment of $25,000, in December, 1901, had been made.

'8. On the 10th day of December, 1900, Crowe presented to Trickey, as administrator of Chapin's estate, in accordance with the law of the territory of Arizona, his claim against the estate of Chapin for '10 per cent of the purchase price of the Pride of the West mine, agreement for the sale of which was entered into about April 1st, 1899, and which said agreement of sale was made by Chapin and Neville to A. R. Wilfley, and which sale was brought about by the said George W. Crowe, upon the agreement that he was to receive 10 per cent commission upon said purchase price from said Chapin and Neville, one half of said 10 per cent being $5,000.'

'9. This claim was rejected by the administrator, and he thereupon brought this action in the district court of Santa Cruz county on the 25th day of January, 1901, at which time the estate of N. H. Chapin, deceased, was solvent, and amply able to pay all debts of the said estate, and the said Chapin nor the said Trickey nor anyone else had paid to the plaintiff the said sum of $5,000, or any part thereof, or anything on account thereof.

'The case was tried before the court, without a jury, a jury having been by agreement of parties waived, and the court made the following findings of fact:

[Here follow findings of fact and conclusions of law by the district court, upon which judgment was rendered in favor of the plaintiff, and an appeal prayed therefrom to the supreme court as stated.]

'The only statements of fact in the record were contained in the foregoing findings of fact, and in a bill of exceptions. The said bill of exceptions, which was transmitted to the supreme court of Arizona with the record in this case, did not state that it contained all of the evidence which was introduced upon the trial of the case in the district court, nor upon the points presented to the Arizona supreme court for its decision, nor does it otherwise appear from the record in the case that all of the evidence which was introduced upon the trial of the case in the district court was before the said supreme court of Arizona. The abstract of the transcript which contained the evidence stated that 'the defendant, by his bill of exceptions, which contained all the evidence taken on said trial, and which is as follows:' then follows the bill of exceptions reciting the testimony of the different witnesses, covering some 23 pages, and at the conclusion thereof the following allowance:

"The foregoing bill of exceptions was presented to me for allowance on the 24th day of January, 1902, and was by me on the same date submitted to Messrs. Hereford & Hazzard, attorneys for the opposite party, who made no objection thereto, whereupon the said bill of exceptions is now by me signed, approved, and allowed as of the said 24th day of January, 1902. Geo. R. Davis, Judge;' but the record contains no certificate from the clerk or court that the evidence contained in the bill of exceptions constituted all of the evidence taken on the trial in the lower court, and that fact is controverted by the counsel for the appellee.

'The Arizona supreme court found the following facts:

'1. That the efforts of the plaintiff, Crowe, resulted in procuring the purchaser Wilfley not to purchase absolutely, but to take an option on the purchase of the property involved, for $100,000; that Crowe's principals accepted a deed to the property and placed it in escrow; that although Chapin died before the expiration of that escrow agreement, the deed executed by him remained subject to the order of the purchaser, and that, if he had availed himself of the terms of that agreement, the sale would have been completed and plaintiff Crowe would have been entitled to his commission; but that Wilfley failed to make the payment and take up the deed, and, after the expiration of the option and after Chapin's death, the deed was returned to the administrator of Chapin's estate and the transaction was closed without any sale being made.

'2. That the sale of the property that was subsequently effected was the result of the negotiations between Trickey, the administrator of Chapin's estate, and Wilfley; that before the date of the sale, Crowe's power or authority to act in the matter had been terminated, and his agency revoked by the death of Chapin.

'3. That in regard to the latter negotiations, Crowe rendered no services to Trickey, received no appointment or agreement from Trickey in reference to the matter, and took no part whatever in the ultimate sale.

'4. That the plaintiff, Crowe, did not, between the 8th day of February, 1898, and the 11th day of January, 1900, bring about a sale of Chapin's interest in the property in controversy.

'5. The said A. R. Wilfley paid to the said defendant the sum of $50,000, as follows; April 7, 1900, $500; June 19, 1900, $4,500; September 19, 1900, $5,000; December 19, 1900, $5,000; March 20, 1901, $5,000: June 17, 1901, $5,000; December 7, 1901, $25,000, not for the right, title, and interest of the said Norman H. Chapin, but for the 'right, title, and interest of the said estate of Norman H. Chapin, deceased, in and to' the said property, in compliance with the terms of the contract of sale and title bond executed to the said Wilfley by Trickey, the administrator of said estate.'

[Here follow conclusions of law and judgment.]

Messrs. W. C. Keegin, Seth E. Hazzard, and F. H. Hereford for appellant.

[Argument of Counsel from page 234 intentionally omitted]

Mr. Eugene S. Ives for appellee.

Mr. Chief Justice Fuller delivered the opinion of the court: