Carter v. McCall

Citation8 S.E.2d 844,193 S.C. 456
Decision Date10 April 1940
Docket Number15063.
PartiesCARTER v. McCALL.
CourtUnited States State Supreme Court of South Carolina

The order of Judge Sharkey requested to be reported follows:

The plaintiff is a real estate broker. He brings this action to recover what he alleges to be compensation due him pursuant to an oral agreement entered into with defendant concerning certain real estate owned by defendant. The terms of the agreement and the services rendered by plaintiff pursuant thereto, as alleged in the complaint and as shown by the testimony, may be summarized as follows:

Pursuant to negotiations conducted by plaintiff, defendant purchased from the County of Florence a tract of land adjacent to the City of Florence, for the sum of $5,000, making a cash payment of $1,000 and giving to the county a purchase money mortgage for $4,000 to secure the balance of the purchase price. Under the agreement which she then made with plaintiff the land was subdivided into forty lots and was listed with plaintiff for sale, as her agent. The compensation provided for was to consist of three elements: first, a commission of 10 per cent on each sale made; second, 50 per cent of the profit remaining after payment from the sale proceeds of the $5,000 purchase price, together with all expenses including the broker's commission of 10 per cent; and finally a cash settlement upon the basis of one-half the value of any lots which remained unsold after the purchase price of $5,000 had been paid from the sale proceeds. Plaintiff further alleges that pursuant to this agreement he undertook to sell the lots and did sell thirty-one of the forty lots, as shown by the itemized schedule attached to the complaint. From the proceeds of these sales the defendant was reimbursed for the initial payment of $1,000, and her purchase money mortgage to the county in the sum of $4,000 was paid in full. There then remained from said proceeds, after deducting all expenses including plaintiff's commissions as broker, a balance of profit due plaintiff of the sum of $541.12, which plaintiff claimed under the agreement. The 10 per cent commissions accruing to plaintiff on actual sales made were, with the exception of three items, collected and retained by him. He alleges full performance of all his obligations under the contract, demand on defendant for the remaining portion of his compensation, and the breach by defendant of the contract, by her refusal to pay the balance due.

Plaintiff's prayer is for judgment of $541.12--being one-half of the alleged balance of net profit and for the further sum of $1,887.50--being one-half of the value of the nine unsold lots.

All the foregoing allegations of fact were supported by relevant evidence offered by plaintiff at the trial of the cause at the September, 1939, term of Court. At the conclusion of plaintiff's evidence defendant moved for a nonsuit upon these grounds:

1. That the suit is brought on an alleged contract concerning land which is not in writing as required by the statute of frauds, and hence there can be no recovery thereon.

2. That the part performance of the alleged parol contract which might sustain an action for specific performance in equity affords no relief in this action at law for damages resulting from the breach of such alleged parol contract.

3. That there is no evidence in the case of such a note or memorandum in writing of the alleged contract as will relieve the bar of the statute of frauds.

4. That the alleged parol contract was not one coupled with an interest insofar as the plaintiff was concerned, and the defendant not only had the right to terminate it but did actually terminate it not later than January, 1938, and by reason of such termination, the plaintiff has no claim whatever respecting the nine unsold lots described in paragraph 3 of the complaint.

5. That the admitted facts, as well as the proof, conclusively show that the plaintiff has collected 10 per cent commission on all lots he has actually sold, and in addition is withholding $675 belonging to defendant and which he has no right to withhold.

This motion having been overruled, defendant announced she had no testimony to offer, but would rely entirely upon her legal grounds. She then moved for a direction of verdict upon the same grounds. This motion was also overruled. Without waiving any of her legal positions, defendant agreed to accept plaintiff's evidence as to the value of the nine unsold lots, and there being no other possible question of fact, under the evidence, to submit to the jury, a direction of verdict in plaintiff's favor was ordered upon his motion.

The cause is now before me on defendant's motion for a new trial, the grounds of this motion being identical with those upon which the nonsuit was based.

The matter is thus reduced to a single legal issue, raised by the defendant, to wit: Does the oral agreement entered into between plaintiff and defendant come within the provisions of the statute of frauds, because of plaintiff's claim to one-half of the value of the said lots? The defendant vigorously asserts that it does. She embraces within that assertion certain other subsidiary contentions, all of which will be hereafter considered. The legal question involved must be determined in the light of the facts. No dispute exists concerning the facts, and these factual conclusions necessarily follow.

The oral agreement, as alleged by plaintiff, was entered into by defendant. Included in the terms of the contract was a provision under which defendant agreed to pay plaintiff as a part of his compensation for services rendered pursuant thereto, in addition to his commissions on sales made one-half of the value of any lots remaining unsold after the $5,000 purchase price had been paid; as well as a further provision entitling plaintiff as a portion of his compensation, to one-half of the net profits. The contract was fully performed by plaintiff.

The pertinent section of our statute of frauds (Section 7044, 1932 Code) is as follows: "No action shall be brought whereby to charge *** the defendant *** upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them *** unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith."

This section is patterned after and is practically identical in phraseology with the fourth section of the English statute. The meaning of the term "interest in land" and the extent of its application under the provisions of the statute is clearly and concisely stated by a highly respectable authority in the following language: "The term 'interest' in land as used in the statute of frauds, means some portion of the title or right of possession, and does not include agreements which may affect land but which do not contemplate the transfer of any title, ownership or possession." (Italics added.) 20 R.C.L., p. 535.

The very words of the statute "any contract or sale of lands, *** or any interest in or concerning them" contemplate the sale or transfer of some title or interest therein, so as to confer upon the transferee some right of possession or ownership. The plaintiff here claims no interest in or title to the land referred to, and it isn't possible to construe the provisions of his oral agreement with defendant as a contract which contemplated the transfer to him of any interest in the land itself. Its value is merely made the measure of his compensation for services rendered as a real estate broker. Upon an analysis of the language of the statute and of the provisions of the agreement, the distinction between the two proves to be substantial and vital.

But the defendant insists that the word "concerning" as used in the statute, must resolve the point in her favor. She claims that the statute in effect, says that no action shall be brought upon any contract "concerning" real estate, unless it be in writing, and that the term "concerning real estate" must be interpreted and applied in its literal sense without relation to the idea of a sale or transfer of title. The effect of this construction would be to render the statute of frauds applicable to every oral agreement which in any manner relates to real property, even though no transfer of any interest whatsoever might be contemplated thereby. I am unable to adopt such a rule of construction. To do so would, for one thing, be directly contrary to the settled rule which has long been established in this as well as other jurisdictions, holding that a contract under which a real estate broker is employed for the purchase or sale of lands need not be in writing, so far as the recovery of compensation is concerned. Innumerable authorities might be cited on this point. One from our own jurisdiction will suffice.

"A complaint by a broker against a lumber company to recover for timber land purchased for defendant at the rate of 50 cents per thousand feet of timber on the land does not present a contract within the statute of frauds, and need not specify that the contract was partly in writing and partly in parol." (Syllabus) Jumper v. Dorchester Lumber Co., 119 S.C. 171, 111 S.E. 881.

The statute can only be applied to contracts which have in view the transfer of an interest "in or concerning" lands, the word "concerning" being simply synonymous with the word "in".

The defendant relies very strongly, in this connection, upon the case of Johnston v. La Motte, 6 Rich.Eq. 347, and particularly upon the following language used by Chancellor Johnston, taken from the report of that case: "All contracts or agreements relating to lands must be in writing." An examination of the case cited shows that the...

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4 cases
  • McGuirk v. Ward
    • United States
    • Vermont Supreme Court
    • November 4, 1947
    ...the words "concerning them", that is concerning lands, to be found in the Georgia statute as well as in our own. From the opinion in the Carter case would appear that the South Carolina statute is similar to ours in its wording. It is therein stated that the word "concerning" appearing in t......
  • Clardy v. Sovereign Camp, W. O. W.
    • United States
    • South Carolina Supreme Court
    • April 10, 1940
    ... ... judgment is reversed, and the case is remanded with ... instruction to enter judgment for the defendant ...          CARTER ... ...
  • Hilton Head Island Realty, Inc. v. Skull Creek Club, 0625
    • United States
    • South Carolina Court of Appeals
    • November 12, 1985
    ...to negotiate the sale of real property was not essential in South Carolina to the broker's recovery of a commission. Carter v. McCall, 193 S.C. 456, 8 S.E.2d 844 (1940). A written contract is still Only recently our Supreme Court in United Farm Agency v. Malanuk, 284 S.C. 382, 325 S.E.2d 54......
  • United Farm Agency v. Malanuk, 22228
    • United States
    • South Carolina Supreme Court
    • January 8, 1985
    ...(1976). However, oral commission agreements are often enforceable and are not violative of the Statute of Frauds. Carter v. McCall, 193 S.C. 456, 8 S.E.2d 844 (1940). The terms of the agreement between the broker and sellers in the instant case are disputed, and no written contract exists. ......

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