Cathey v. Shope

78 S.E.2d 135 (1953)

238 N.C. 345

CATHEY v. SHOPE et ux.

No. 113.

Supreme Court of North Carolina.

October 14, 1953.

*137 Don C. Young, Asheville, for plaintiff appellee.

Fisher & Fowler and Harold K. Bennett, Asheville, for defendants appellants.

BARNHILL, Justice.

The court below gave a peremptory instruction in favor of the plaintiff. Exception thereto poses this question for decision: Does all the competent testimony in this cause, considered in the light most favorable to defendants, tend to show that defendants are indebted to plaintiff in the sum of $3,675? The court below, by its instruction, answered in the affirmative. We agree.

The defendants listed their property for sale with plaintiff. He advertised the same and contacted prospective purchasers. Defendants from time to time went to his office to inquire as to the prospects of sale. Finally, the Council got in touch with him because it was known, or the Council was informed, that he had the property for sale. He reported to defendants he had a prospective purchaser. After conferring with him as to price, personal property to be excluded, and other matters, they signed an informal option prepared by plaintiff, more favorable to them than their original listing. Thereafter, on the same day, they executed a formal option, prepared by the attorney of the Council, in which they agreed to sell to Francis J. Heazel or his assigns the locus in quo at the price of $100,000. At the same time they signed a contract to pay plaintiff, upon the consummation of the sale, the commissions he now claims. The sale was consummated under the terms of the original option as modified by the contract of 27 September and the extension agreement of 9 November 1951.

There is only one inference that may be drawn from this evidence. The plaintiff has fully performed his part of the contract, and defendants must pay him for his services the compensation they agreed to pay. This was the substance of the charge of the court below to which defendants except. It meets our approval. Hence this exceptive assignment of error is overruled.

The evidence offered by plaintiff pertaining to his effort to sell defendants' farm after it was listed with him up to the time he was approached by the Council was admissible in corroboration of plaintiff's testimony that defendants' farm was listed with him for sale and for the purpose of showing the relationship that existed between him and defendants at the time they signed the option of 25 August 1951. He testified he approached them on 25 August as their agent to obtain an option that would in effect "hook the fish" that was "nibbling at the bait." The testimony to which defendants' *138 exceptive assignments of error are directed tends to show that he was then acting as agent of defendants. It follows that defendants' exceptions thereto are without merit.

The record is devoid of any evidence tending to show that plaintiff, in procuring an option and effecting a sale of the property of defendants, was acting in a dual capacity or that he was acting as agent of the optionee in procuring the option of 25 August. Therefore the court committed no error in declining to submit the tendered issue or in its charge in respect thereto. Satterwhite v. Hicks, 44 N.C. 105; Brown's Heirs v. Patton's Heirs, 35 N.C. 446; Lee v. Williams, 112 N.C. 510, 17 S.E. 165.

Only such issues as are raised by the pleadings and supported by competent evidence should be submitted to a jury. Morrisett v. Elizabeth City Cotton Mills, 151 N.C. 31, 65 S.E. 514; Braswell v. Johnston, 108 N.C. 150, 12 S.E. 911; Griffin v. United Services Life Insurance Co., 225 N.C. 684, 36 S.E.2d 225; Stokes v. Edwards, 230 N.C. 306, 52 S.E.2d 797.

Those who had signed options to sell their property, at the instance of the Council, held a meeting to consider reducing the prices they were demanding so as to bring the total within the amount Oerlikon was willing to pay. Witnesses offered to testify that plaintiff at this meeting addressed the optionors and made the statement, "he wasn't getting a dime out of it," and other statements to like effect. This testimony was properly excluded. It does not appear just when this meeting was held. Certainly it was after the defendants executed the agreement to pay plaintiff a commission for making sale of their property, and the alleged statements were insufficient to constitute a rescission or abrogation of that contract. Patton v. Sinclaire Lumber Co., 179 N.C. 103, 101 S.E. 613; May v. Getty, 140 N.C. 310, 53 S.E. 75; H. M. Wade Manufacturing Co. v. Lefkowitz, 204 N.C. 449, 168 S.E 517; Lewis v. Gay, 151 N.C. 168, 65 S.E. 907; Adams v. Battle, 125 N.C. 152, 34 S.E. 245; Palmer v. Lowder, 167 N.C. 331, 83 S.E. 464; Bell v. Brown, 227 N.C. 319, 42 S.E.2d 92.

Defendants rely heavily on what they term their Exceptions 11 and 12, directed to the exclusion of testimony of the feme defendant. No such exceptions were entered of record. Even so, they contend that exceptions are implied under the terms of Ch. 150, S. L. 1949.

The feme defendant testified that plaintiff went to the home of defendants 27 September and told them the prospective purchaser would not buy from the various optionors unless the purchase price of the several tracts desired was reduced. They replied: "* * * we were a community citizen people and would be glad to help the community and that we would reduce ours $3,000, (and he told us there would be absolutely no commission when we did that * * *)." Plaintiff moved to strike the testimony in parentheses. The motion was allowed. Defendants contend that under Ch. 150, S.L. 1949, an exception by them to this ruling is implied.

Mrs. Shope was then asked whether she signed another agreement reducing the price $3,000 on 9 November. She answered: "I did, but I did because I was told a story; now that is exactly why; and the paper was never offered me to read." Plaintiff moved to strike. "Motion allowed. That is not in response to the question."

Here again the defendants contend an exception on their part to the ruling of the court is implied.

The contention of the defendants that in law they entered Exceptions 11 and 12, although at the time they remained silent, is without merit.

Ch. 150, S.L. 1949, is short and to the point. It provides:

"Section 1. In any trial or hearing no exception need be taken to any ruling upon an objection to the admission of evidence. Such objection shall be deemed to imply an exception by the party against whom the ruling was made."

*139 It simply provides that when a litigant objects to the admission of evidence and his objection is overruled, it shall be conclusively presumed that he duly excepted to the ruling. It makes no provision for the protection of the adversary party who sits by and fails to except when an objection to evidence is sustained. The Legislature wisely omitted any such provision, for a trial judge should be advised, at the time, that his ruling is challenged. The objection gives him notice on the one hand, but silence on the other does not. Instead, it indicates the ruling is accepted as being in accord with rules governing the admission of testimony.

In any event, the ruling of the court was correct. Feme defendant testified that after plaintiff stated that no commissions would be charged if defendants reduced their asking price by $3,000, he went to town and returned to their home that night with a contract which she and her husband executed. This is the contract of 27 September reducing the price and in which the inducement or consideration for the reduction is specifically stated as follows:

"Undersigned has been informed by said Francis J. Heazel that said option and options on other land in the same neighborhood have been obtained by him for the purpose of providing site for the construction and operation of a manufacturing plant and that said option given by the undersigned may not be exercised unless the said purchase price stated therein is reduced. "Therefore, as an inducement to said Francis J. Heazel, Attorney, and also to Asheville Industrial Promotion Council, Inc., to continue thereafter to sell the said land of the undersigned to a corporation that shall use said land as a part of a site for a manufacturing plant and in consideration of said Francis J. Heazel, Attorney, agreeing that said option granted to him shall not be exercised for the benefit of or assigned or transferred to anyone other than a corporation that shall so use said land, it is agreed by undersigned that the purchase price for the land described in the attached agreement is reduced to Ninety Seven Thousand ($97,000) Dollars * *."

The testimony stricken was at variance with this provision of a written contract thereafter executed and was properly excluded. Pierce v. Bierman, 202 N.C. 275, 162 S.E. 566.

The question involved in the purported Exception 12 was improper. It incorporated an erroneous conclusion of law. The contract of 9 November was not "an agreement reducing the price." The price was reduced by the contract of 27 September. The contract of 9 November was merely an agreement extending the option of 25 August, as modified by the contract of 27 September, an additional sixty days.

In this connection we may note that the assumption the agreement of 9 November reduced the defendants' asking price by $3,000 no doubt led to the efforts on the part of defendants to prove statements made by plaintiff prior to the execution thereof, which produced many of the exceptions contained in the record.

We have examined the exceptive assignments of error not herein specifically noted, and we fail to find in them sufficient merit to require discussion.

In the trial below we find

No error.