Crowell v. Parker

• Decision Date: 26 April 1916
• Docket Number: 415.
• Citation: 88 S.E. 497,171 N.C. 392
• Parties: CROWELL v. PARKER ET AL.
• Court: North Carolina Supreme Court

88 S.E. 497

171 N.C. 392

CROWELL v. PARKER ET AL.

No. 415.

Supreme Court of North Carolina

April 26, 1916

Appeal from Superior Court, Stanly County; Carter, Judge.

Action by R. A. Crowell against J. M. Parker and another. From a judgment for plaintiff, defendant Parker appeals. Reversed and new trial granted.

Plaintiff broker's right to commissions held a question for the jury.

The plaintiff, a real estate broker, sued for the recovery of $450, alleged to be due by the defendants, J. M. Parker and Luther Shirey, as commissions on the sale of 380 acres of land in said county, and known as the David Melton home place. The contract was as follows:

"On this the 4th day of May, 1912, I hereby authorize and empower R. A. Crowell to sell for me my tract of 380 acres of land located on the waters of the Yadkin river near the Swift Island Ferry and known as the David Melton land or home place at the price of five thousand dollars, payable two thousand cash and fifteen hundred dollars and interest on the deferred payments each year for two successive years, the deferred payments to be secured by notes and mortgage on the property. And in the event the timber, or any part of it, on said land is cut before the notes and mortgage for the deferred payments have been paid the sum of three dollars per thousand feet for all timber cut is to be applied on said notes and mortgage as may be agreed upon by the purchaser and myself. I make R. A. Crowell my sole agent for that purpose and in case a sale is made by him or through his influence or advertising, I do contract and agree to execute to the purchaser a deed in fee for the said property, reserving to myself all the rents from the property or farm this year. The said R. A. Crowell shall receive as compensation for his services 10 per cent. of the price above named to be arranged out of the first payment of two thousand dollars. This contract may be terminated by me after six months from the above date, upon giving written notice of my withdrawal of the same.

J. M Parker. [ Seal.]"

The jury returned the following verdict:

"(1) Did the defendant J. M. Parker execute and deliver to the plaintiff the contract marked 'Exhibit A,' as alleged in the complaint? Answer: Yes. (2) Did the defendant J. M. Parker sell the land described in said contract to the defendant L. S. Shirey and J. M. Cook before the expiration of said contract, as alleged in the complaint? Answer: Yes. (3) Was said sale made through the efforts, influence, advertising, or personal solicitation of the plaintiff? Answer: Yes. (4) In what amount, if any is the defendant J. M. Parker indebted to the plaintiff? Answer: $450."

The court instructed the jury to answer the first and second issues, "Yes," if they believed the evidence, and then instructed them as to the evidence upon the third issue. Judgment was entered upon the verdict, and the defendant appealed.

Robert L. Smith, of Albemarle, for appellant.

R. E. Austin, of Albemarle, and J. A. Spence, of Ashboro, for appellee.

WALKER, J. (after stating the facts as above).

It is not necessary that we should set forth even the substance of all the evidence. The case, as we view it, turns upon the meaning of the contract between the plaintiff and J. M. Parker and the nature of the transaction between J. M. Parker and L. S. Shirey, who acted, it seems, for himself and J. M. Cook. We will assume, for the sake of discussion, that the plaintiff by his efforts and influence brought the parties, Parker and Shirey, together to make their trade in regard to the land. It appears that the first negotiations for a sale by Parker to Shirey and Cook at $5,000, the amount mentioned in the plaintiff's contract, fell through, and afterwards, but before the contract between plaintiff and Parker had been terminated by notice, Shirey agreed thereafter orally to buy the land at $4,500 payable in certain installments. On November 9, 1912, Parker deposited with M. J. Harris, assistant cashier of a bank in Albemarle, two deeds to Cook and Shirey, duly executed and probated, one for the land and the other for the timber on the dower tract containing 108 acres, and Harris delivered to Parker a written receipt for the same signed by him and reciting that the deeds were to be held in escrow, upon the condition that, if Cook and Shirey paid $2,000 by January 1, 1913, and secured the balance of the purchase money ($2,000) by a mortgage on the land, the deed of Parker should be delivered to them. The paper also recited that the grantors and grantees had agreed to the arrangement set forth by it, but neither the grantors nor the grantees signed the receipt, nor is there any evidence that Shirey or Cook authorized it to be signed for them, or that they even saw it at the time it was given. It was merely a receipt, which M. J. Harris gave J. M. Parker for the papers, stating the purpose for which they were left with him. The evidence, in no reasonable view of it, can be considered as showing that Shirey and Cook were bound in writing by an agreement with Parker to buy the land. As against them, the contract was legally unenforceable.

This being so, what are the relations of the parties, and the rights incident thereto? It is plain that the defendant though he afterwards sold the property, that is, in April 1913, has received nothing from that sale which was produced by the effort or agency of the plaintiff, and we do not understand that anything is claimed as accruing to the plaintiff from it. It may also be said that the result from the agency of the plaintiff in his attempt to sell the property to Shirey and Cook has been in...