Burge v. First Southern Sav. Bank
| Decision Date | 03 May 1994 |
| Docket Number | No. 9326SC507,9326SC507 |
| Parties | Robert A. BURGE T/A Robert A. Burge Real Estate Investments, and ACC Management, Inc., Plaintiffs, v. FIRST SOUTHERN SAVINGS BANK, Defendant. |
| Court | North Carolina Court of Appeals |
Eugene S. Tanner, Jr., Greensboro, for plaintiff appellants.
Brooks, Pierce, McLendon, Humphrey & Leonard by S. Leigh Rodenbough, IV and John W. Ormand, III, Greensboro, for defendant appellee.
Plaintiffs argue that they are entitled to a commission on the sale of defendant's property because their prospect ultimately purchased the property. A real estate broker is entitled to a commission if the broker proves (1) the existence of a binding contract between the broker and seller and (2) the broker's performance of that contract. Thompson-McLean, Inc. v. Campbell, 261 N.C. 310, 313, 134 S.E.2d 671, 674 (1964). The performance generally required of the broker is to find a purchaser ready, willing, and able to purchase the seller's property on the terms provided in the broker's contract. Id. Plaintiffs here did not procure such a purchaser, and they are therefore not entitled to a commission.
The contract required a purchaser who was willing to purchase the nine acre lot for $100,000.00 per acre, and who was willing to pay the brokers' commission. Although plaintiffs' prospect offered to purchase the nine acre lot, he made the offer conditioned on the acquisition of an additional one and a half acre lot which defendant did not own. As a result, defendant was required to negotiate with a third party for the sale of the additional acreage, a duty which defendant did not assume under the contract with plaintiffs. In addition, the purchaser was not willing to pay the brokers' commission.
Negotiations for the sale of defendant's lot, in which defendant promised to try to acquire the additional acreage, continued past the expiration date of the contract, but no agreement arose from those negotiations. Thus, plaintiff's allegations, from which these facts were drawn, show that plaintiffs did not fulfill their obligations under the contract. They did not produce a purchaser ready, willing, and able to purchase on the terms provided in the contract.
Nonetheless, plaintiffs argue that they are entitled to a commission because they were the procuring cause of the sale. Although plaintiffs originally put the purchaser in contact with defendant, the ultimate sale did not materialize until sixteen months after the initial contact and not until defendant (1) arranged for the sale of a lot in addition to the nine acre lot it owned, (2) contracted for the services of a new broker, and (3) assumed the responsibility for paying the new broker's commission. Plaintiffs cannot contend in the face of these facts that they were the procuring cause of the sale. See Hecht Realty, Inc. v. Whisnant, 41 N.C.App. 702, 255 S.E.2d 647, disc. review denied, 298 N.C. 299, 259 S.E.2d 912 (1979). The allegations show that plaintiffs did not perform as the contract...
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