Collins v. Ogburn Realty Co., Inc.

271 S.E.2d 512 (1980)

Alfred L. COLLINS, Jr. and wife, Kathleen B. Collins; George C. Mussotter and wife, Jaris Mussotter v. OGBURN REALTY COMPANY, INC.; J. R. Ogburn.

No. 8010DC304.

Court of Appeals of North Carolina.

October 30, 1980.

*514 Brenton D. Adams, Raleigh, for plaintiffs-appellants.

Seay, Rouse, Johnson, Harvey & Bolton by Ronald H. Garber, for defendants-appellees.

ERWIN, Judge.

Plaintiffs assign as error, inter alia, the summary adjudication of their liability to defendants for a six percent realtor's commission. They contend that there was neither evidence that the Collinses were "ready, willing and able" to purchase plaintiffs' house at the listing price, nor evidence that defendants were the procuring cause of the eventual sale of the property. Plaintiffs further contend that defendants are precluded from recovering a realtor's commission because of their failure to effect a sale of the property within the 120-day period prescribed in the listing agreement. We do not agree.

The elements which a broker must prove to establish his or her entitlement to commissions were set forth in Realty Agency, Inc. v. Duckworth & Shelton, Inc., 274 N.C. 243, 162 S.E.2d 486 (1968). There Justice (later Chief Justice) Sharp noted that:

"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. [Citations omitted.] 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 commission provided the case is not taken out of the rule by the contract of employment. [Citations omitted.] The broker is the procuring cause if the sale is the direct and proximate result of his efforts or services."

Id. at 250-51, 162 S.E.2d at 491.

In this case, the responsive pleading and counterclaim of the Mussotters, owners of the property, contain the following pertinent admissions: the Mussotters listed their property at 704 Fieldstone Court with defendants at a sale price of $58,900; the Mussotters executed an offer to purchase agreement concerning the property with the Collinses at a purchase price of $58,900; the Mussotters conveyed the property to the Collinses by warranty deed on or about 3 September 1977; and the Mussotters have refused to pay defendants a realtor's commission. In view of the guidelines set forth in Realty Agency, Inc. v. Duckworth & Shelton, Inc., id., the defendants' entitlement to their commission is clearly demonstrated upon the face of plaintiffs' pleadings. There exists no dispute that the defendants *515 performed the duty of presenting to the Mussotters a party who actually contracted to purchase their property upon terms acceptable to them and that this was done well within the 120-day period set forth in the listing agreement. Plaintiffs' contention that defendants are precluded from recovering a commission because of their failure to effect a sale of the property within the 120-day period is unavailing in view of the fact that, as noted above, it is defendants' procurement of "a party who actually contracts for the purchase of the property," id., which determines entitlement to a realtor's commission.

In opposing defendants' motion for summary judgment on the issue of liability for realtor's commissions, plaintiffs have failed to raise a genuine issue as to a material fact concerning any element upon which defendants' claim for relief depends. Best v. Perry, 41 N.C.App. 107, 254 S.E.2d 281 (1979). Since summary judgment was properly entered on this issue, we overrule this assignment of error.

Plaintiff also assigns as error the trial court's action in permitting the jurors to take exhibits offered at trial into the jury room during their deliberations. During the trial on the issue of damages, defendants offered the testimony of J. R. Ogburn. During direct examination, Ogburn was permitted to read the amount of real estate commissions charged by members of the Multiple Listing Service of the Raleigh Board of Realtors, as found on randomly selected pages of different volumes of the weekly listing booklets published by that organization. These booklets were marked as Defendants' Exhibits 1 through 33. The witness was also permitted to identify and describe the listing agreement wherein plaintiffs granted defendants the exclusive right to sell their property for a 120-day period. This contract was marked as Defendants' Exhibit 34. During the witnesses' testimony, the court received into evidence Defendants' Exhibits 1 through 34. Finally, the witness identified and described a deed from plaintiffs to the Collinses conveying the property at 704 Fieldstone Court. The witness testified that the presence of revenue stamps in the amount of $56.00 upon the deed indicated a gross sale price of $56,000. The deed was marked as Defendants' Exhibit 35, but was not received into evidence.

At the conclusion of its charge to the jury, the court, over plaintiffs' objections, allowed the jurors to take Defendants' Exhibits 1 through 35 into the jury room during deliberations. It is well settled in this jurisdiction that without the consent of the parties, it is error to permit the jury to take exhibits into the jury room and to retain them during its deliberations. Doby v. Fowler, 49 N.C.App. 162, 270 S.E.2d 532 (1980); Brown v. Buchanan, 194 N.C. 675, 140 S.E. 749 (1927). In Watson v. Davis, 52 N.C. 178, 181 (1859), our Supreme Court explained the reason for the rule as follows:

"The jury ought to make up their verdict upon evidence offered to their senses, i. e., what they see and hear in the presence of the court, and should not be allowed to take papers, which have been received as competent evidence, into the juryroom, so as to make a comparison of hand-writing, or draw any other inference which their imaginations may suggest, because the opposite party ought to have an opportunity to reply to any suggestion of an inference contrary to what was made in open court."

In view of this well settled principle as respects exhibits which have been received into evidence, it follows a fortiori that the trial court commits error when it permits the jury to retain in the jury room exhibits which have not been received into evidence. Because we believe that such action by the trial court prejudicially affected plaintiffs' right to have the question submitted to the jury considered impartially, we sustain plaintiffs' assignment of error and grant plaintiffs a new trial on the issue of damages. The judgment appealed from is

Reversed in part and affirmed in part.

ARNOLD and WELLS, JJ., concur.