(dissenting).
• First, I am of the opinion that the court should, on its own motion, have dismissed the appeal because of the insufficiency of appellant’s assignments of error, which read:
“I. The Court erred in denying Appellant’s motion for directed verdict.
“II. The Court erred in denying Appellant’s motion for Judgment, notwithstanding the special verdict.
“III. The special verdict is contrary to law and is contrary to the weight of evidence. (Emphasis supplied.)
“IV. The judgment is contrary to law.”
The inadequacy of these assignments to meet the requirements of our rules is so patent it requires no comment. See, Thornburg v. Frye, 44 Ariz. 282, 36 P.2d 548; Tidwell v. Riggs, 70 Ariz. 417, 222 P.2d 795; Meloy v. St. Paul Mercury Indemnity Co., 72 Ariz. 406, 236 P.2d 732; and the cases therein cited.
*39Secondly, if the appeal is to be considered on its merits, I dissent for the reason that I am unable to agree with the majority opinion which overrides both the unanimous verdict of the jury and the judgment of the trial court on a disputed issue of fact.
The issues are simple; broker Porter claimed that his efforts were the procuring cause of the sale, whereas the other broker, Jarvis, when required to interplead, claimed that he was the procuring cause. I maintain this presented a question of fact for the determination of the jury, assuming the evidence is in conflict thereon. Clark v. Ellsworth, 66 Ariz. 119, 184 P.2d 821. The jury was instructed that the issue of procuring cause hinged on whether or not the negotiations between Mrs. Kleinman, Mitchells and Ploughes had fallen through before Jarvis undertook to negotiate a deal. The correctness of this is not questioned, and it became the law of the case. The jury found Mrs. Kleinman, saleslady for Porter, was not the procuring cause, and therefore must have found her negotiations with Mitchells and Ploughes had fallen through. The majority decide as a matter of law that her negotiations had not fallen through.
It is my firm conviction that the majority have departed from our time-honored policy of stating the evidence in a light most favorable to sustaining the judgment of the trial court. Furthermore, I believe that in fact they are weighing the evidence as suggested in appellant’s assignment number III. I believe that if we consider the record in the usual manner, with the inferences that can legitimately be drawn therefrom, the evidence amply supports the judgment that, Jarvis was the procuring cause of the sale. I agree with the learned trial court that the request of each of the parties to take the case from the jury and decide the issues as a matter of law, should be denied.
Let us look at these additional facts: contrary to Mrs. Kleinman’s testimony that negotiations were still active and pending between the owners and purchasers, we have the evidence of Mr. Ploughe that he saw the Mitchells only the one time, and Ploughe flatly denied that he had promised to protect Mrs. Kleinman in the matter of a commission, stating;
“I did not think it was necessary to have anything more to do with her because I felt that she couldn’t bring the people up to her price so I just supposed it was over and I knew she just had an open listing.”
Mrs. Ploughe gave her version'of their rejection of the Mitchell offer of $11,500, and then testified:
“Q. Anything said by she (Mrs.' Kleinman) or by you about any further activity on this offer, or was it just dropped there? A. It was dropped right there.
“Q. Anything further happen about it at all between you and Mrs. Klein-man ? A. No, sir.
*40“Q. Did she contact you again at all? A. No, sir.”
Later when asked
“Q. Would you have signed this defendant Jarvis' Exhibit 1 in evidence (the contract with the purchasers) except upon the belief that he (Jarvis) was entitled to the commission?”
she replied:
“A. I would have signed it, I think, because we wanted to sell the place. There was no doubt in my mind at that timé except that she (Mrs. Kleinman) had given it up completely because she had offered the $11,500 and gone away, and that is the last I heard of it, and Mr. Jarvis then brought the people and I just thought it was all right.”
In harmony, with this is the testimony of the buyer, Mitchell, relative to their dealings with Mrs. Kleinman. He testified:
“She told us she could not get the folks (meaning the Ploughes) together. They would not face one another so we just dropped it then. As far as I was concerned that was out for me.”
Later after their earnest money check was returned on the morning of July 17, Mitchell stated the Ploughe property was never mentioned or discussed between them; that they never saw Mrs. Kleinman though they were available had she tried to contact them. She herself testified that her understanding with the buyers was “If we cannot negotiate a transaction it (the check) would be returned”. I believe that reasonable men, considering all of the evidence, could draw the logical conclusion that when Mrs. Kleinman returned the earnest money check on the morning of July 17th, her negotiations had fallen through. Certainly the record will permit the conclusion that Porter was procuring cause and that negotiations had not fallen through, but more certainly, the record does not compel such an inference.
The majority opinion states that Jarvis was neither the procuring cause of the sale nor in fáct did he do anything to induce the sellers to reduce the price. In my opinion these are unjustifiable inferences not borne out by the record. It appears Jarvis had the confidence of the Mitchells, having known them for several years and at one time having represented them in a business deal. Where Mrs. Kleinman had, in their one joint conference, failed to sell the property in that she was unable to secure a meeting of the minds between the owner and purchaser, Jarvis succeeded by getting all of the parties together and after some concessions had been made on both sides signed them on the dotted line.
The majority assume as a fact that negotiations were still pending between Porter’s saleslady and Ploughes and Mitch-ells—while actually this is the crucial issue of fact for the jury—and based upon this false premise they cite the cases of Millage *41v. Irwin, Cunliff v. Hausman, and Walker v. Bennett & Myers Inv. Co. These announce the following proposition of law:
“ Where a prospective purchaser has been introduced to the owner by one broker and the negotiations are pending and have not fallen through, the owner cannot, with knowledge of the facts, complete the purchase with another agent, and avoid his liability for the commission due to the first broker. Thus the law will not permit one broker who has been intrusted with the sale of land, and is working with a customer whom he has found, to be deprived of his commission by another agent stepping in and selling to the customer for a price less than the first broker is empowered to receive.’ ” Millage v. Irwin, supra [68 Colo. 188, 187 P. 526],
I concede that this is a correct principle of law but deny its application to the conclusion which I contend the triers of fact were entitled to draw from the evidence adduced.
Some of the other cases cited and heavily relied upon are: Williams v. Bishop, Geiger v. Kiser, and Combs v. Langston Inv. Co., all of which stand for this principle, viz.:
“ ‘If an owner of real estate lists his property with a real estate broker, and then sells directly, at a reduced price, to a purchaser the broker had found, and with whom he was negotiating a sale, * * * then the owner is liable to the broker for a commission on the price received.’ ” Combs v. Langston Inv. Co., supra [100 Okl. 21, 227 P. 95],
Obviously this can have no application to the facts found in the instant case except by assuming the false premise indulged in by the majority, i. e., that Ploughe sold the property direct to Mitchells and that Jarvis had nothing to do with procuring the sale. Incidentally none of these cases were interpleader actions.
In Leadville Mining Co. v. Hemphill, 17 Ariz. 146, 149 P. 384, 386, one Hemphill was employed by the mining company to put the mining company in contact with one who would finally purchase their property. Hemphill performed this service. Greenidge and Dugan were employed by the mining company to conclude the negotiations and get the purchaser on the dotted line, which they did. The mining company contended it was liable for but one commission and the case was brought upon that theory. Hemphill recovered and the mining company appealed. Greenidge and Dugan did not appeal. The lower court was affirmed because any error there may have been was not prejudicial to the mining company which was actually liable for two commissions. We said:
“ * * * The owner was at liberty to employ one person to find a customer and another to finally consummate a trade with that customer, and if the owner has done this it is just sim*42ply one of those cases where the owner of property has by his acts made himself liable to pay double commissions on account of one transaction.”
The majority state the Leadville Mining Company case stands for the proposition that a first broker recovers because he is the procuring cause of the sale. To the contrary in my opinion it stands for the proposition that where an owner offers to pay a broker for producing a customer to whom the property is later sold, the owner is-liable even though a second broker is the procuring cause of the sale.
Counsel for the defendant, Ploughe, in availing himself of the right to require the rival brokers to interplead, adroitly avoided a possibility of a double liability. Hence, when the realtor’s commission of $662.50 was by order of court deposited with the clerk,, the sole question for determination was who was entitled to the fee. The Plougheg have made no appearance in this court.
■Had Porter seen fit to bottom his suit in tort rather than in contract and alleged that the owner Ploughe was guilty of bad faith in that he had not remained neutral between-the rival brokers, and by reducing the asking price without giving Porter an opportunity to meet it, and had thereby given Jarvis an undue advantage, the result might have been different, but that is not this law suit.
F=or, the reasons stated I would affirm the judgment,■ • • . - •