Hecht Realty, Inc. v. Whisnant

Annotate this Case

255 S.E.2d 647 (1979)

41 N.C. App. 702

HECHT REALTY, INC. v. Kenneth Wayne WHISNANT and Johnnie F. Whisnant.

No. 7827SC746.

Court of Appeals of North Carolina.

June 19, 1979.

*649 Bradley, Guthery, Turner & Curry by Clayton S. Curry, Jr., Charlotte, for plaintiff-appellee.

Don M. Pendleton and Thomas M. Shuford, Jr., Lincolnton, for defendants-appellants.

ERWIN, Judge.

Defendants' first assignment of error presents the following question: "Did the trial court err in denying the appellants' motion for a directed verdict at the close of the plaintiff's evidence and at the conclusion of all of the evidence, and in denying appellants' motion for judgment notwithstanding the verdict and for a new trial?" Defendants rely on several North Carolina cases in contending that in order for the plaintiff to recover, it must establish (1) a binding contract and (2) performance on its part, and this was not established in the case sub judice. Plaintiff contends that this is an action on quantum meruit for the reasonable worth of the plaintiff's services in procuring the Castles to purchase defendants' property. We concede that this is a close case, but we are compelled to find error and reverse the judgment entered by the trial court.

Our Supreme Court stated the rules governing this case in Realty Agency, Inc. v. Duckworth & Shelton, Inc., 274 N.C. 243, 250-51, 162 S.E.2d 486, 491 (1968), as follow:

"Ordinarily, a broker with whom an owner's property is listed for sale becomes entitled to his commission whenever he procures a party who actually contracts for the purchase of the property at a price acceptable to the owner. Cromartie v. Colby, 250 N.C. 224, 108 S.E.2d 228; Martin v. Holly, 104 N.C. 36, 10 S.E. 83. If any act of the broker in pursuance of his authority to find a purchaser is the initiating act which is the procuring cause of a sale ultimately made by the owner, the owner must pay the commsision [sic] provided the case is not taken out of the rule by the contract of employment. American Trust Co. v. Goode, 164 N.C. 19, 80 S.E. 62. The broker is the procuring cause if the sale is the direct and proximate result of his efforts or services. The term procuring cause refers to `a cause originating or setting in motion a series of events which, without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale or exchange of the principal's property, an ultimate agreement between the principal and a prospective contracting party, or the procurement of a purchaser who is ready, willing, and able to buy on the principal's terms.' 12 C.J.S. Brokers § 91, p. 209 (1938). Accord, 12 Am.Jur.2d Brokers § 190 (1964)."

In Sparks v. Purser, 258 N.C. 55, 57, 127 S.E.2d 765, 766-67 (1962), our Supreme Court stated:

"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. . .' Ins. Co. v. Disher, 225 N.C. 345, 34 S.E.2d 200. `. . . commissions are based upon the contract of *650 sale.' 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. 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."

Plaintiff relies on Lindsey v. Speight, 224 N.C. 453, 31 S.E.2d 371 (1944), wherein our Supreme Court held in an action by plaintiff for the reasonable value of his services in securing a purchaser for the property of defendant, who had listed such property with the plaintiff for sale, where there is evidence that plaintiff was the procuring cause of sale, a motion for judgment of nonsuit was properly overruled. In Lindsey, there was not any intervention or another broker as here. The plaintiff's own evidence showed that the property had been listed with Howard Realty.

We hold that Cromartie v. Colby, 250 N.C. 224, 108 S.E.2d 228 (1959), is not applicable to the facts in the case before us. In Cromartie, evidence that tended to show that property was listed by the owners with plaintiff broker, that the broker procured a client's interest in the property and advised the owners of the name of the client, and that the owners sold the property to the client at the agreed price before the broker had an opportunity to complete the negotiations and show the property to the client, was sufficient to preclude involuntary nonsuit in the broker's action for commission.

It is well settled that on a motion by defendant for a directed verdict under G.S. 1A-1, Rule 50(a), of the Rules of Civil Procedure, the court must consider the evidence in the light most favorable to the plaintiff and may grant such motion only if, as a matter of law, the evidence is insufficient to justify a verdict for plaintiff. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971), and Adams v. Curtis, 11 N.C. App. 696, 182 S.E.2d 223 (1971). Plaintiff's own evidence showed: that it had knowledge of the contract of listing between defendants and Howard Realty; that Howard Realty, in fact, sold the property pursuant to this listing; that plaintiff's offer was met by a counter offer which was not accepted; that the final sale price was lower; that the closing date was changed from 2 April to 15 March 1976; and that defendants did not prevent plaintiff from making the sale under the terms as specified in defendants' counter offer.

On the record before us and with the direct intervention of Howard Realty, we hold that the chain of events set in motion by the plaintiff was broken to the extent that plaintiff cannot establish that it was the procuring cause of the ultimate sale of defendants' property when the evidence is taken in the light most favorable to plaintiff. Defendants' motion for a directed verdict pursuant to G.S. 1A-1, Rule 50(a), of the Rules of Civil Procedure should have been allowed by the trial court. In this day of multiple listings with two or more persons from different brokers' offices involved in one sale, the integrity of contracts of sale is very important in the marketplace.

Judgment reversed.