Barrett v. Hiney

94 Ariz. 133 (1963)

382 P.2d 240

Don J. BARRETT, Appellant, v. William M. HINEY, Appellee.

No. 7479.

Supreme Court of Arizona. In Division.

May 29, 1963.

Favour & Quail, Prescott, for appellant.

BERNSTEIN, Chief Justice.

Appellant was plaintiff in a suit to collect a real estate commission. The trial court held that on most of the issues the evidence supported the plaintiff's position but that judgment should be entered for the defendant on the ground that there was a variance in the terms of payment and that these terms did not meet the listing contract. Neither waiver nor estoppel were applicable to the facts in the case.

Appellant has made numerous assignments of error challenging the judgment of the trial court. Appellee has not favored us with a brief within the time prescribed by *134 the rules, and this case has been submitted for decision under Rule 7(a) 2, Rules of the Supreme Court, 17 A.R.S., pursuant to motion of appellant. As there are debatable issues this Court will assume the failure to file an answering brief is confession of reversible error on the part of appellee. Nelson v. Nelson, 91 Ariz. 215, 370 P.2d 952; Tom v. Baca, 93, Ariz. 96, 378 P.2d 912.

Judgment reversed.

UDALL, C.J., and LOCKWOOD, J., concur.