Smith v. Barnes

72 S.E.2d 216 (1952)

236 N.C. 176

SMITH v. BARNES et al.

No. 20.

Supreme Court of North Carolina.

September 17, 1952.

*218 W. R. Francis and M. G. Stamey, Waynesville, for plaintiff, appellant.

Millar, Medford & Millar and Wynn & Wynn, Sevierville, Tenn., for defendants, appellees.

DENNY, Justice.

The plaintiff insists that if his evidence is considered in the light most favorable to him, as it should be on a motion for judgment as of nonsuit, such evidence is sufficient to warrant its submission to a jury. Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.

We cannot concur in this view in light of the pleadings and the evidence disclosed by the record.

There is no allegation in the complaint to indicate, or from which it may be inferred, that the parties entered into a mutual agreement to pool their efforts to sell the property and to split the commission, regardless of which one procured the purchaser. The contract, as alleged, purports to bind the defendants only in this respect. Therefore, there is no mutuality of agreement or other consideration alleged, sufficient in law, to support the contract as set out in the complaint. Where there is no consideration for a contract, except the mutual promises of the parties, such promises must be binding on both parties. In such agreements, only a binding promise is sufficient consideration for a promise of the other party. 12 Am.Jur., Contracts, section 13, page 509 et seq. Rankin v. Mitchem, 141 N.C. 277, 53 S.E. 854; Croom v. Goldsboro Lumber Co., 182 N.C. 217, 108 S.E. 735; Kirby v. Stokes County Bd. of Education, 230 N.C. 619, 55 S.E.2d 322. See also Wellington-Sears & Co. v. Dize Awning & Tent Co., 196 N.C. 748, 147 S.E. 13.

The plaintiff contends, however, that when he gave the defendants permission to sell the property, he surrendered a right sufficient to constitute a consideration for the agreement which they entered into. The contention is without merit. He had no exclusive right to sell the property at the time Mr. Barnes contacted him. In fact it would seem at that particular time he had no agreement at all with the owners with respect to the sale of the property. His forty-eight hour agreement, whatever it was, had expired and the property was listed generally with the real estate brokers in Haywood County and with some in Asheville. Consequently, his right to recover must stand or fall upon the terms of his agreement with the defendants.

It is true that in the trial below the plaintiff undertook to prove the existence of a contract based upon the mutual promises of the respective parties, but proof without allegation is as unavailing as allegation without proof. Bowen v. Darden, 233 N.C. 443, 64 S.E.2d 285; Maddox v. Brown, 232 N.C. 542, 61 S.E.2d 613; Ingold v. Phoenix Assurance Co., 230 N.C. 142, 52 S.E.2d 366, 8 A.L.R.2d 1439.

No error has been made to appear in the ruling of the court below, and the judgment is affirmed.