(dissenting) :
I dissent. As stated by the majority opinion, constructive trusts are limitless in form, and are raised by courts of equity where necessary to effectuate justice and prevent inequity. A constructive trust may be imposed to prevent unjust enrichment. Restatement, Restitution § 160, Comment a.
The appellant contends that by paying the heirs for their interest in- the stock, and by thereafter paying the appellee for the stock certificates, either the heirs or the appellee-executor is unjustly enriched. The appellant also contends that he was “forced” to purchase the certificates to prevent the bearer stock from being passed to a bona fide purchaser and to protect the money already spent in purchasing the hereditary rights. Having paid twice for the same stock, the appellant contends he should recover from either the appellee-executor, or the heirs, and, therefore, is entitled to impress a constructive trust on any funds available in the hands of any of the parties, if those funds resulted from these transactions.
Is the allegation of being “forced” to make a purchase resulting in an unjust enrichment sufficient to preclude the granting of a motion for summary judgment? I think that it is. As this court has previously stated:
“The Supreme Court of Arizona has suggested that trial judges should exercise great care in granting motions for summary judgment, notwithstanding the desirability of prompt dispatch of judicial business, [citing cases]” State v. Ashton Co., 4 Ariz.App. 599, 602, 422 P.2d 727, 730.
Our Supreme Court, in Boozer v. Arizona Country Club, Ariz., 434 P.2d 630 (1967), recently stated:
“If the material facts, although not in dispute, are uncertain, a summary judgment is improper, [citing cases]
“Tt [summary judgment] should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. * * * And this is true even where there is no dispute as to the evidentiary facts in the case, but only as to the conclusions to be drawn therefrom.’ [Italics ours] Kirkpatrick v. Consolidated Underwriters, 227 F.2d 228 (4th Cir. 1955)
“ ‘The facts and circumstances, although in no material dispute as to their actuality, reveal aspects from which incon*150sistent hypotheses might reasonably be drawn and as to which the minds of reasonable men might differ. The drawing of inferences and the acceptance of hypotheses arising out of the facts are ordinarily attributes that the judicial process has conferred upon the finder of facts. * * *
‡ ‡ ‡ ‡
“‘ * * The impact of particular circumstances upon inference arising from an admittedly existing factual situation calls for a factual determination which is the function of the trier of facts and not that of the court in disposing of a motion for summary judgment * * *. A judge may not, on a motion for summary judgment, draw fact inferences.’
s|í sjs ?¡c :¡í
“Empire Electronics Co. v. United States, 311 F.2d 175, 180 (2d Cir. 1962) [Italics ours.]”
The Boozer case, supra, also quotes with approval from Alvado v. General Motors Corporation, 229 F.2d 408 (2d Cir. 1955). The allegation with which the court was concerned in Alvado was that the defendant “intended to discriminate against veterans.” In reversing the summary judgment, the court stated:
“In such circumstances (especially where, as here, such a matter as good faith, or the like, is crucial) the granting of a summary judgment is error. For the opponent of the motion is thereby deprived of the opportunity to cross-examine the movánt’s officials, and is prevented from having a trial court assisted in its evaluation of their credibility by observing their demeanor while they testify. * * * the failure of the opponent of the motion to file a counter-affidavit has no significance. * * * ‘In many recent cases, where ' motive, intent, subjective feelings and reactions, consciousness and conscience were to be searched, and examination and cross-examination were necessary instruments in obtaining the truth, we have pointed out that and why the issues may not be disposed ■ of on summary judgment.’ ” 229 F.2d at 412.
Certainly, an allegation of being “forced” should be treated similar to “motive, intent, subjective feelings and reactions, consciousness and conscience.”
I would reverse the trial court and allow the appellant the opportunity to prove his allegations at trial.