Lane v. Mathews , 74 Ariz. 201 ( 1952 )

LA PRADE, Justice

(dissenting).

I cannot agree with the disposition made of this case on rehearing, and am firmly convinced that the case was correctly determined on the first decision.

The evidence discloses that the parties had presumably come to an agreement at the time of their oral discussions. The lessor attempted to reduce the purported agreement to writing and submitted it to lessee in the form of a written lease. The lessee kept the written agreement for some time, more than a few days. Finally the lessor came from California and visited the premises, and while there asked the lessee if he had executed the lease. The lessee responded in the affirmative, whereupon the lessor asked where the documents were. At this time the lessee pointed toward a car seat or truck, where the lessor picked them up. The lessee did not disclose the fact that material changes in the terms of the written lease had been made. With reference to this situation the majority opinion reads as follows:

“Lessee, who can neither read nor write, had the agreement read to him. Not being satisfied with the terms thereof, lessee took the agreement to Alfred Putts, his financial backer, for inspection. Putts and lessee took the lease to Lloyd Helm, a Douglas attorney, and had the last page changed to embody the terms and conditions which they contend had been agreed upon by the parties. Helm’s secretary removed the original last page, number seven,, and substituted the new page seven embodying the changes. The secretary also copied the secretarial marks on the new page as they appeared on the orignal six pages of the lease, i. e., JMJ MSJ and the date 3/16/48, which was also on the original seven pages. Lessee then signed the lease and returned it to lessors without mentioning the changes which had been made on the last page. Lessor E. C. Lane testified' that he did not reread the lease before signing it but stated that he checked the pages noting the identifying marks on the bottom of each page. After so-inspecting the lease, lessors signed it before a notary public in their attorney’s office in California."

I cannot agree with this statement of the-facts. The lessee testified that upon receipt of the lease he did not read it or have-it read but took it to his financial advisor,. Mr. Putts. It was Mr. Putts who changed', the lease and the terms thereof. He did' this without the knowledge or consent of the lessee. After the changes were made-the lessee testified that the lease was read ta him, that it sounded all right and that as far as he knew it conformed with what he believed the terms to have been at the time of the oral agreement.

The court refused to submit to the jury the following interrogatories:

“Number 4. Were the plaintiff and defendants mutually mistaken as to the execution of the agreement?”

“Number 6. Does the agreement as signed impose upon the defendants obligations which were not intended or agreed that the defendants should assume or bear?”

“Number 7. Does the agreement as signed embody the true agreement between the plaintiff and the defendants ?”

“Number 11. Did the plaintiff at the time that he returned to the defendant, E. C. Lane, the agreement, know of the changes made with respect to page 7 ?”

“Number 13. Did the plaintiff and the defendants sign the agreement under the mutual mistake that the agreement as signed was the same document which was presented by the defendants to the plaintiff for his signature?”

“Number 15. Was page 7 of the agreement substituted by A. H. Putts or any other person acting in concert with him without the authority or knowledge of the defendants and the plaintiff?”

The lessee testified that the lease submitted did not contain the te'rms that had been agreed upon although at the time he executed the lease he was unaware that the submitted lease did not contain the terms he had agreed upon.

There was very definitely a conflict in the evidence and a controverted issue of fact. By refusing to give the submitted interrogatories the court deprived itself of the advice of the jury with respect to what the true agreement was. The law in this situation in this jurisdiction is as follows:

“ * * * we hold that in the trial of equity cases where a jury has been demanded, the court may not withdraw the determination of controverted facts from the jury and that the case may only be withdrawn from their consideration where there is no controverted issue of fact, in other words, only in cases where if it were an action at law the court would be required to direct an instructed verdict.” Haynie v. Taylor, 69 Ariz. 339, 213 P.2d 684, 689.

The defendants (lessors) were entitled to have these interrogatories answered for the advice of the court. It is no answer to say that the court would not have been bound by the answers, which is true, but the court was bound to receive the advice upon the material issue of fact in this case, namely, what was the true agreement between the parties ?