Abbott v. Hunt

• Decision Date: 20 December 1901
• Court: North Carolina Supreme Court
• Parties: ABBOTT et al. v. HUNT.

40 S.E. 119

129 N.C. 403

ABBOTT et al.

v.HUNT.

Supreme Court of North Carolina.

Dec. 20, 1901.

CONTRACTS FOR SALE OF LAND—REAL ESTATE AGENTS—TERMINATION OF AGENCY—STATUTE OF FRAUDS.

1. A landowner authorized real estate agents to sell the property if they could secure a certain sum. Subsequently they telegraphed the owner an offer lower than the price stated. The latter declined by letter, saying: "I prefer you do not offer it again, even at the price named, unless I can sell my residence. Sell the residence. Then I will sell the business property." Held, that the letter terminated the agency.

2. An agreement by the owner of real estate with agents for the sale of such property is not within the statute of frauds, so that no recovery of commissions can be had if not in writing.

3. Where a landowner authorizes agents to sell the property if they can secure a price therefor that would net him a certain sum, the owner may terminate the agency at will, and the agents cannot recover for services rendered thereafter.

Appeal from superior court, Mecklenburg county; Robinson, Judge.

Action by Abbott & Stephens against J. W. Hunt From a judgment in favor of defendant plaintiffs appeal. Affirmed.

Jones & Tillett, for appellants.

Burwell, Walker & Cansler, for appellee.

CLARK, J. In March, 1899, the defendant, who was the owner of certain real estate in Charlotte, agreed orally with the plaintiffs, who were real estate agents, and at that time in charge of said property as his rental agents, that they might sell it if they could secure a price that would net the defendant the sum of $33,000. The plaintiffs made efforts to sell the property, and on April 4th telegraphed defendant an "offer of $32,000, subject to a commission of 2 per cent" This offer the defendant declined by letter, and added: "I prefer you do not offer it again, even at the price named, unless I can sell my residence. Sell the residence. Then I will sell the business property." On April 10th the plaintiffs wrote defendant they had sold the property at $33,000 net, and he declined to ratify their action. His honor below, correctly held that the defendant's letter of April 4th terminated the agency. The contract being denied in the answer, the defendant contends that it could not be proved by oral evidence, and that the plaintiffs are barred, in any aspect, by the statute of frauds, in an action thereon; citing Dunn v. Moore, 38 N. C. 364; McCracken v. Mc-Cracken, 88 N. C. 272; Kivett v. McKeithan, 90 N. C. 106. The plaintiffs were allowed to amend and allege a quantum meruit, but that did not improve their condition; for, unless the services were rendered upon a valid agreement, they were officious and gratuitous. But we cannot agree that the statute of frauds applies. This is not an action for specific performance, but on a contract for personal services, or for damages on breach of such contract for the value of the services. But, aside from that an agency can be revoked at any time before a valid and binding contract within the scope of the agency, has been made with a third party. The only exception is an agency coupled with an interest; and that must be an interest in the subject of the agency, and not merely something collateral, as commissions or compensation for making sale. Hartley's Appeal, 53 Pa. 212, 91 Am. Rep. 207, which holds that a power of attorney by which the attorney is to receive as compensation "one-half the net proceeds" is not a power coupled with an interest, and is revocable. This case cites a very clear enunciation of the same princi-pie by Marshall, C. J., in Hunt v. Rousmanler, 8 Wheat 174, 5 L. Ed. 589, which is also cited by this court, as to agencies to solicit insurance, in Insurance Co. v. Williams, 91 N. C. 69, 49 Am. Rep. 637. In Brookshire v. Voncannon, 28 N. C. 231, it is held that a power of attorney is revocable "at any moment before the actual execution of it" To same purport, Machine Co. v. Ewing, 141 U. S. 627, 12 Sup. Ct. 94, 35 L. Ed. 882; Mansfield v. Mansfield, 6 Conn. 559, 16 Am. Dec. 73; Mechem, Ag. §§ 204-210; Hall v. Gambrill (C. C.) 88 Fed. 709. In ...