Harrison v. Brown

• Decision Date: 03 March 1943
• Docket Number: 102.
• Parties: HARRISON v. BROWN.
• Court: North Carolina Supreme Court

24 S.E.2d 470

222 N.C. 610

HARRISON v. BROWN.

No. 102.

Supreme Court of North Carolina

March 3, 1943

This was an action by plaintiff as assignee of a real estate broker to recover for services in connection with the sale of certain real property by defendant receiver, under orders of court.

The defendant Brown is the duly appointed and acting receiver of the Blue Ridge Building & Loan Association, and as such is engaged in the liquidation of its assets, pursuant to the orders of the Superior Court. In the course of the receivership the following order was made by Presiding Judge Phillips, dated January 29, 1942: "That with a view of early liquidation, the Court appoints J.Y. Jordan, Jr., James A. Carroll and Guy Weaver as an Advisory Committee, and directs that the said Committee shall forthwith examine and go over the list of properties and revise the prices heretofore fixed by the appraisers, with a view of scaling the said prices down approximately 25% on the whole, but with discretion to raise or lower any or all prices, in accordance with their best judgment with respect to each individual item, and that thereupon the said Committee shall appoint one real estate broker to have charge of, negotiate and sell off the properties in connection with the Receiver, the said broker to receive 5% commission on all properties directly sold by him, and he is directed to list with all members of the real estate board said property at the revised prices so fixed, and any of said brokers making sales shall receive 3% of the commission and 2% to go to the broker having the property in charge. *** The Receiver is hereby authorized and directed to make sale and convey any and all properties sold at the prices fixed by the Advisory Committee, or at such price as may be by them approved, without further order of this Court."

By authority of this order, J.A. Carroll, a real estate broker was appointed to have charge of the sale of the real property of the Association in the hands of the receiver upon the terms specified, and in accordance with the court's instructions listed with all members of the real estate board the property at the prices fixed by the Advisory Committee. Thereafter, on February 11, 1942, Arthur A. York, a broker transmitted to Carroll the offer of one C.S. Badgett, in writing, to purchase the property in Asheville known as the Blue Ridge Building for the sum of $50,000 cash, the price fixed by the Advisory Committee, and, as evidence of good faith, to be applied on the purchase price, deposited $2,500. The offer was reported to the receiver. The receiver referred the offer to the Advisory Committee and was authorized and directed by the Committee to accept the offer and to sell the property for the price and on the terms set forth in the offer. Thereupon, on February 12, 1942, the receiver in writing accepted the offer, and the $2,500 was turned over to him. It was admitted in the pleadings that C.S. Badgett had authorized York to make the offer, and there was evidence that Badgett was worth $500,000, and owned real property in Asheville.

On March 6, 1942, J.A. Carroll assigned to the plaintiff the $1,000 commission alleged to be due him in connection with the sale of the property referred to, and in writing authorized the receiver to pay this amount to the plaintiff. This assignment was accepted by the receiver, in writing, as follows:

"I, J.P. Brown, Receiver, hereby agree to carry out the assignment as outlined above of the commission due J.A. Carroll, the real estate broker appointed by the Advisory Committee to sell the properties of the Blue Ridge Building & Loan Association under authority of an order entered in the Superior Court of Buncombe County, N.C., and agree to pay to the assignee the amount stipulated above out of funds now in my hands, which funds represent the deposit made by the purchaser of the building hereinabove described, unless otherwise ordered by the court.

"J.P. Brown, Receiver."

It further appeared from the pleadings offered in evidence by the plaintiff that the receiver prepared the papers necessary to convey title to C.S. Badgett, and tendered same and demanded payment of the balance of the purchase price, $47,500. Payment was refused. Thereafter, March 30, 1942, Arthur A. York petitioned the court to be allowed to withdraw the offer to purchase and to recover the $2,500 previously paid. The receiver filed answer to this petition and asked for specific performance of the contract of purchase and for the recovery of $47,500. The matter was heard May 14, 1942, by Judge Phillips, who entered the following order: "This cause coming on to be heard, and being heard before the undersigned presiding judge, upon the petition of Arthur York and upon the answer filed by the Blue Ridge Building & Loan Association, and upon the oral evidence and affidavits introduced by both parties, and being heard, and the receiver having announced in open court that he was not going to appeal from this order, and for that reason there is no necessity of finding facts, it is therefore ordered by the court that the offer heretofore be, and the same is hereby adjudged of no force and effect and the Receiver, J.P. Brown, with whom the $2,500 in controversy has been deposited is hereby ordered and directed to forthwith refund said money to the said Arthur York. This 14th day of May, 1942."

From this order the receiver did not appeal. Neither the plaintiff nor Carroll, his assignor, was made party to this proceeding or had notice thereof.

Plaintiff applied to the court for leave to bring an independent action against the receiver for the commission claimed, and this was allowed by order of court September 5, 1942. Pleadings were filed and the case was heard at December Term, 1942, of Buncombe Superior Court, at which term it was agreed that jury trial be waived, and that the court should hear the same, find the facts and state his conclusions of law. However, the defendant's motion for judgment of nonsuit made at the close of plaintiff's evidence and renewed at the close of all the testimony was allowed, and plaintiff's cause of action was nonsuited. The judgment recited: "It is therefore, ordered, adjudged and decreed that the plaintiff's cause of action be and the same is hereby nonsuited, and the same is dismissed, and the plaintiff taxed with the costs thereof." There were no findings of fact or conclusions of law stated.

The plaintiff appealed.

Don C. Young, of Asheville, for appellant.

Jordan & Horner, of Asheville, for appellee.

DEVIN Justice.

The plaintiff was permitted by order of court to institute an independent action against the receiver to determine the validity of his claim. McIntosh, p. 1011. A jury trial having been waived, the trial judge could have found the facts with the force and effect of a jury verdict, and declared his conclusions of law arising thereon. The statute requires that when issues of fact are tried by the judge the...