Bonn v. Summers
| Decision Date | 14 January 1959 |
| Docket Number | No. 599,599 |
| Citation | 106 S.E.2d 470,249 N.C. 357 |
| Parties | E. L. BONN v. Raymond SUMMERS and wife, Elsie Summers. |
| Court | North Carolina Supreme Court |
Hoyle & Hoyle, and J. Sam Johnson, Jr., Greensboro, for plaintiff.
J. Owen Lindley, Stedman Hines, and Benjamin Hines, Greensboro, for defendants.
There is no contention on the part of the defendants that the plaintiff did not procure a bona fide purchaser, who was ready, able, and willing to purchase the property of the defendants upon the terms offered by them. However, the defendants take the position that under the terms of their contract, the plaintiff's authority to sell the property involved expired at the end of three months from 21 May 1957 and that they were under no obligation to accept any contract of purchase submitted by the plaintiff after the expiration of that period. The contract is not so written. It provides for the listing to continue after the expiration of the three months' period fixed therein and until the defendants revoke the listing by giving ten days' written notice thereof to the plaintiff.
There is no contention that any written notice was given to the plaintiff revoking the listing prior to the procurement by the plaintiff of a bona fide purchaser.
It seems to be settled law that where a broker acts within the terms and authority given, and succeeds in procuring a contract of sale with a responsible purchaser he is entitled to his stipulated commission and his claim therefor is not affected because the vendors voluntarily fail to comply with their agreement to sell. Crowell v. Parker, 171 N.C. 392, 88 S.E. 497; House v. Abell, 182 N.C. 619, 109 S.E. 877; White v. Pleasants, 225 N.C. 760, 36 S.E.2d 227; Eller v. Fletcher, 227 N.C. 345, 42 S.E.2d 217; Carver v. Britt, 241 N.C. 538, 85 S.E.2d 888; 8 Am.Jur., Brokers, section 184, page 1097.
Where property is listed for sale with an agent and no time limit is set in the contract, notice of revocation of authority to sell must be given to the agent by the principal, otherwise the broker is entitled to his commission if he produces a purchaser who is ready, able, and willing to purchase the property listed with the agent. Reams v. Wilson, 147 N.C. 304, 60 S.E. 1124; Mechem on Agency, section 226, page 151, et seq.
It is true that where no time is fixed for the continuance of a contract between the broker and his principal, either party can terminate the contract at will, subject to the ordinary requisites of good faith. 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 a collateral interest, such as in commissions or compensation for making sale. However, a revocation will not be effective for the purpose of depriving the broker of his commission when a responsible purchaser is procured before the revocation. Abbott v. Hunt, 129 N.C. 403, 40 S.E. 119; Bolich-Hall Realty & Insurance Co. v. Disher, 225 N.C. 345, 34 S.E.2d 200; White v. Pleasants, supra.
This brings us to the gravamen of this appeal. The defendants contend the contract is ambiguous, contradictory, and unenforceable. They insist that in one sentence the agreement indicates that it might be in full force for a period of three months subsequent to the signing of the instrument and thereafter until revoked by giving the notice required therein by the defendants. However, in a subsequent paragraph the same document states, 'if within three days after this listing expires you furnish me a list of prospects to whom you or your representative has actually shown the property * * * I will pay you full commission * * *.'
They insist that the term 'revocation' denotes the necessity for affirmative action on the part of the defendants, while the term 'expires' indicates that the contractural relationship automatically ceased at a definite time, specifically after the three months' period stated in the contract.
We find no ambiguity in this contract or any irreconcilable provision therein. The contract does require affirmative action on the part of the defendants in order to effect its cancelation, unless such requirement had been waived by the plaintiff. Under the terms of the contract, the defendants had the right to give the plaintiff notice of revocation ten days before the expiration of three months. Greene v. Donner, 198 Wis. 122, 223 N.W. 427. If such notice had been given, the plaintiff's authority to sell would have been revoked at the expiration of the three months. Since this was not dont, the contract, in our opinion, remained in full force and effect until notice of revocation was given as provided in the contract or the intention of the defendants not to comply therewith was brought to the attention of the plaintiff before he procured a purchaser.
In 12 C.J.S. Brokers § 16, p. 48, it is said: 'Where the contract creates an exclusive agency for a certain period and provides that it may be revoked at the expiration of such period only by a specified written notice, the agency is exclusive for the period specified and continues thereafter until revoked by such notice; and such a contract is not objectionable as being for an indefinite or unreasonable term, since it may be revoked at any time, by written notice.'
In Reinke v. West,...
To continue reading
Request your trial
-
W. W. Chambers, Inc. v. Audette
...such characteristics manifest an understanding that notice is required for effective termination of commission rights. Bonn v. Summers, 249 N.C. 357, 106 S.E.2d 470 (1959); Dindo v. Cappelletti, supra; Restatement of Agency, Second, supra. On the other hand, it is widely acknowledged that a......
-
Goodman v. Kelly
...It required affirmative action on the part of defendant after November 1, 1956, in order effectively to terminate. Bonn v. Summers, 249 N.C. 357, 106 S.E.2d 470, 472. That we think clearly expressed the intent of the parties, and the phrase relating to advance notice may be rejected as surp......
-
Ross v. Perry
...and his right is not affected if the principal voluntarily cancels the contract which the broker negotiated. Bonn v. Summers, 249 N.C. 357, 106 S.E.2d 470 (1958); House v. Abell, 182 N.C. 619, 109 S.E. 877 (1921). Relying upon this rule, plaintiff contends that she is entitled to the commis......
-
Renfro v. Meacham
...261 N.C. 310, 134 S.E.2d 671 (1964), even if the owner voluntarily fails to comply with his agreement to sell, Bonn v. Summers, 249 N.C. 357, 106 S.E.2d 470 (1959), the circumstances of this case clearly indicate that Canal Industries, Inc. was not "ready, willing, and able" to purchase on ......