Chipley v. Morrell

• Decision Date: 26 November 1947
• Docket Number: 527
• Citation: 45 S.E.2d 129,228 N.C. 240
• Parties: CHIPLEY et ux. v. MORRELL et al.
• Court: North Carolina Supreme Court

45 S.E.2d 129

228 N.C. 240

CHIPLEY et ux. v. MORRELL et al.

No. 527

Supreme Court of North Carolina

November 26, 1947

Civil action to recover of defendant D. L. Morrell $625 as broker's commission under contract for sale of certain real estate, to defendant Mrs. Pota Lampros, and of defendant Mrs. Pota Lampros $625 as damages for breach of contract to purchase said real estate from defendant D. L. Morrell, and to declare same a lien upon the $1,000 earnest money paid by defendant Mrs. Pota Lampros, heard upon demurrer to complaint entered by defendant Mrs. Pota Lampros.

This action relates to the same contract of sale and purchase of real estate that is involved in and as set out in Lampros v. Chipley, N.C., 45 S.E.2d 126.

In connection therewith, plaintiffs here allege in their complaint substantially these facts: That, acting under an exclusive agency given to them by D. L. Morrell, they caused to be executed on May 24, 1946, a valid and binding contract for the sale by defendant D. L. Morrell to defendant Mrs Pota Lampros of a certain house and lot known as 428 Hermitage Court in the city of Charlotte, North Carolina, at price of $12,500,--with deposit of $1,000 as a binder, and providing that 'the seller agrees to pay the Chipley Realty Company a fee of 5% or $625 Dollars when sale is closed'; that on May 25, 1946, plaintiffs caused to be prepared, executed and acknowledged a deed from D. L. Morrell and his wife to defendant Lampros, which they tendered to defendant Lampros; that she refused to accept the deed, and pay the balance of purchase price and carry out said contract of May 24, 1946; that at times therein mentioned defendant Lampros was financially able to purchase said property and perform said contract; that on August 16 1946, defendant Morrell sold said property to others than defendant Lampros; that for and on account of services rendered as therein set out defendant D. L. Morrell is indebted to plaintiffs in the sum of $625 for commissions that defendant, Mrs. Pota Lampros, willfully and wrongfully breached said contract of May 24, 1946, and thereby damaged plaintiffs in the sum of $625; that plaintiffs are entitled to a lien upon the earnest money of $1,000, referred to in said contract, for the satisfaction of any judgment rendered herein in favor of them; and that the said $1,000 has been deposited with Clerk of Superior Court of Mecklenburg County N. C., and is subject to the orders of the Court in this action.

Defendant Mrs. Pota Lampros, demurred to the complaint, on the ground that same does not allege a cause of action against her in that: (A) Under the allegations of the complaint, plaintiffs had no contract whatever with her, and if they have been damaged at all, it has been by defendant D. L. Morrell, and not by her. (B) The contract relied upon by plaintiffs, which is incorporated into the complaint by reference, specifically states, 'The seller agrees to pay the Chipley Realty Company a fee of five per cent of $625 when sale is closed', and thus the sole pa...