Sparks v. Purser

127 S.E.2d 765 (1962)

258 N.C. 55

William K. SPARKS v. James R. PURSER and wife, Lottie R. Purser.

No. 239.

Supreme Court of North Carolina.

October 31, 1962.

*766 Welling, Welling & Meek, Charlotte, for plaintiff.

Ray Rankin, Henry E. Fisher, Charlotte, for defendant.

HIGGINS, Justice.

Both the plaintiff and the defendant James R. Purser appealed. The defendant assigns as error the refusal of the court to grant his motion for nonsuit at the close of all the evidence. The plaintiff assigns as error the refusal of the court to set aside the verdict on the third issue for that the jury having found the parties entered into a contract which the defendant breached, the court as a matter of law should have answered the third issue $1,825.00.

The evidence disclosed that originally the defendants and the Senns had some negotiations looking toward the sale of the Queen's Road property. The negotiations were dropped. The Senns saw the plaintiff's advertisement and undertook to purchase the defendant's house and lot. However, the negotiations also involved a sale of the Senn's home. Before any final and binding offer was obtained by the plaintiff, the defendant apparently gave an exclusive listing to the Withrow Agency. The Senns saw Withrow's sign displayed on the lot and thereafter they negotiated with Withrow and closed the sale at the seller's price of $36,500.00. The plaintiff, never, at any time, was able to obtain an unqualified offer from the Senns or anyone else to pay the price fixed.

The plaintiff admitted he did not have an exclusive listing. He did not introduce evidence that he obtained an unqualified offer from a purchaser, ready, able and willing to pay $36,500.00. "It is the established law in this jurisdiction that a real estate broker is not entitled to commissions or compensation unless he has found a prospect ready, able and willing to purchase in accordance with the conditions imposed in the broker's contract * * *." Bolich-Hall Realty & Ins. Co. v. Disher, 225 N.C. 345, 34 S.E.2d 200. "* * * commissions are based upon the contract of sale." *767 Raleigh Real Estate & Trust Co. v. Adams, 145 N.C. 161, 58 S.E. 1008; White v. Pleasants, 225 N.C. 760, 36 S.E.2d 227; Banks v. Nowell, 238 N.C. 737, 78 S.E.2d 761; McCoy v. Wachovia Bank & Trust Co., 204 N.C. 721, 169 S.E. 644.

This is not a case in which the owner went behind the broker's back to take advantage of his efforts, then closed the sale himself in order to escape a broker's commission justly earned, as in Cromartie v. Colby, 250 N.C. 224, 108 S.E.2d 228. The sale was negotiated by Withrow, to whom the defendant paid full commission. The evidence did not make out a case for the jury. Compulsory nonsuit should have been entered at the close of the evidence. This disposition makes it unnecessary to discuss plaintiff's appeal. The judgment of the superior court is

Reversed.