dissenting:
Since I am of the opinion that the Statute of Frauds was complied with and that the “subject to” question, which was the issue in the prior Supreme Court decision in this cause, Del Rio Land, Inc. v. Haumont, 110 Ariz. 7, 514 P.2d 1003 (1973) was properly resolved by the trial court on the facts, I must respectfully dissent.
The essence of the majority opinion, whether fully articulated or not, is that there cannot be a specifically enforceable auction sale of land without reserve if the seller is not 100% happy with the price obtained immediately after the fall of the auctioneer’s gavel. Although the majority of courts may sanction such a result by allowing the revocation of the auctioneer’s authority “between the fall of the hammer and the signing of the memorandum”, (see generally, 7 Am.Jur.2d Auctions and Auctioneers, supra, § 36), I do not believe such a result is consonant with the intent of the Statute of Frauds, nor required thereby in the typical auction situation. While the disappointed bidder may have an action for damages, I see no reason for such a limitation.
Our Supreme Court, in commenting upon the purposes of the Statute of Frauds, i. e., to prevent fraud through oral testimony, even though that comment was made regarding a series of writings to sell cattle, as opposed to land, made a general observation which strikes at the heart of this case:
“The statute of frauds is merely a rule of evidence, and not one governing the making of the contract, and its purpose is to prevent a party from being compelled, by oral and perhaps false testimony, to be held responsible for the conditions of a contract he claims he never agreed to. But, if that party has offered in writing to make the very contract with which it is sought to charge him, he has over his own signature admitted his willingness to be held thereby, and cannot justly complain because the acceptance of the other party who seeks to hold him is oral.” Bartlett-Heard Land and Cattle Co. v. Harris, 28 Ariz. 497, 503, 238 P. 327, 329 (1925). (Emphasis added)
In this spirit, I believe the majority’s analysis of Restatement of Contracts, § 208, supra, regarding the integration of several writings should have come to the opposite conclusion, as did the trial court.
Essentially, we have two signed writings and one or two unsigned writings which in the context of auction sales should be held to have been executed with reference to each other. Restatement of Contracts, § 208, supra; 7 Am.Jur.2d, Auctions and Auctioneers, § 42, supra. These items, the auctioneer’s agreement, the receipt, and the advertising brochures, obviously were written with reference to each other and cover all the details of the sale of the land, including location, description, price and method of payment, 25% down, balance at 7% interest for 100 equal monthly payments. These matters are not basically questioned in the record. The words “subject to”, which were discussed in the Supreme Court’s prior opinion in the case, Del Rio Land, Inc. v. Haumont, supra, were in dispute but did not constitute as much of a “statute of frauds” as a “parol evidence” issue regard*9ing the mathematical computation of the price, and will be discussed later.
There is no serious doubt regarding the auctioneer’s authority to sell the land. From the agreement signed by the sellers, he had complete authority. While they originally wanted to reserve the right to approve the sale, the auctioneer refused that condition and they subsequently acceded to his terms and signed the agreement. Likewise there can be no serious controversy regarding the receipt, vis-a-vis the price per acre and the land covered. It was signed by the auctioneer’s employee and the auctioneer’s copy was found in his receipt book, along with the other receipt copies of the auction in question. Cf. 7 Am.Jur.2d, Auctions and Auctioneers, supra, particularly § 38, notes 5, 6 and 7. The majority concedes it was a writing “signed by a party to be charged” within the meaning of the Statute of Frauds.
Insofar as the description of the land is concerned and the terms of the sale, the majority alludes to only a portion of the advertising brochure (Exhibit 17) supra, which was merely the specific descriptive list of the some 180 items (denominated as lots), including the one parcel of land described therein as “real estate” and listed under LOT NO. 97. The actual advertising brochure itself, however, (Exhibit 4 offered into evidence by the sellers), has the exact location of the land, the approximate acreage, the zoning of the land, the terms of the sale, including required down payment, interest rate, and number of monthly payments. There was only one parcel of real estate to be sold. A map of the central portion of Phoenix was also included, pinpointing in green the exact location of the land on the map. This was clearly a sufficient description. Robinson v. Black, 73 N.M. 116, 385 P.2d 971 (1963). While this New Mexico case involved damages and not specific performance, it is very persuasive as to the statute of frauds issue vis-a-vis auction sales, particularly the integration of several writings to properly identify the land sold at auction.
The issue of “subject only to the existing mortgage”, Del Rio Land, Inc. v. Haumont, supra, 110 Ariz. at 8, 514 P.2d at 1004 [the Supreme Court was quoting from the auctioneer’s agreement, one of the documents now in issue] is, in my opinion, a sham issue after the retrial. There is no question that everyone knew the land was encumbered by a small mortgage. While this matter was properly resolved by the Arizona Supreme Court as one not amenable to a summary judgment resolution in favor of Haumont, they did not mandate the result now sought by Del Rio. That opinion simply said there were genuinely disputed facts which precluded summary judgment. Del Rio Land, Inc. v. Haumont, supra.
Now that the facts have been fully developed, it is clear that there was no real dispute about the “subject to” language, but a dispute as to how the bidding was to take place so as to arrive at the ultimate price: total value of the land, less the encumbrance.
At the hour set for the auction, no one on the property where the bidding was to take place knew the exact amount of the mortgage, although general figures were known and included in the brochure, supra. Rather than wait for an exact figure and then require the potential bidders to divide the sum, $55,000 plus, into the 72.31 acres, and reduce their per acre bid accordingly, it was announced that they should bid on what they believed to be the actual value of the land, regardless of the mortgage, and the mathematics of how much went to the sellers and how much went to pay off the mortgage could be done later.
The arrangement did not in any way vary the “subject to” provisions of the contract, and was thus not proven in violation of the “parol evidence rule”, the real evidentiary question involved with this issue. See generally: Arizona Title Insurance & Trust Company v. Hunter, 103 Ariz. 384, 442 P.2d 831 (1968); Farnsworth v. Hubbard, 78 Ariz. 160, 277 P.2d 252 (1954); 7-G Ranching Company v. Stites, 4 Ariz.App. 228, 419 P.2d 358 (1966). Since the land was sold “subject to” the mortgage, this issue is not a part of the broader statute of frauds *10question discussed above and can be, and should be, thus summarily resolved.
While I agree with the majority of the Court that the Wisconsin case of Zuhak v. Rose, supra, is not persuasive in its reasoning vis-a-vis the possible statute of frauds question or the estoppel issue, it did reach an obviously correct result. We should come to the same conclusion, adding only the proper analysis and law justifying that result.
I would affirm the judgment in all respects.