Jones v. Palace Realty Co.

• Decision Date: 01 May 1946
• Docket Number: 521
• Citation: 37 S.E.2d 906,226 N.C. 303
• Parties: JONES v. PALACE REALTY CO.
• Court: North Carolina Supreme Court

37 S.E.2d 906

226 N.C. 303

JONES v. PALACE REALTY CO.

No. 521

Supreme Court of North Carolina

May 1, 1946

Civil action by broker to recover commission for procuring purchaser ready, able and willing to buy land on terms authorized.

The plaintiff is a licensed real estate broker in the City of Charlotte. In August, 1944, he was given the exclusive right for thirty days, to sell the old Charlotte Sanatorium property at a price satisfactory to the owner-commission to be paid 'out of the proceeds'. On September 1, 1944, the plaintiff prepared a letter for signature by the Palace Realty Company, addressed to Mr. U. A. Zimmerman, in which the owner agreed to sell to the addressee the Sanatorium property at a price of $100,000--'Deed to be made up at once, and the transaction to be finally closed up soon as your attorney investigates title to the property'.

This letter concludes with the statement: 'When the deal is closed up we will pay Frank F. Jones his commission of 5% * * * out of the sale price of the property'.

Following the signature of the Palace Realty Company by A. M. Whisnant President, appears the acceptance in writing by U. A Zimmerman, and also the signature of Frank F. Jones, agent for Palace Realty Company.

Negotiations ensued looking to a consummation of the sale, but on October 18, 1944, large Federal tax liens were levied against U. A. Zimmerman in consequence of which he 'became unable to comply with his contract '. The deal, therefore, was never 'closed up' and the purchase price never paid.

In his testimony the plaintiff says: The Palace Realty Company has never given me a commission for the sale of this property. I waited for weeks and weeks for him (Dr. Whisnant) to close it up. I didn't want to make any demand on him for my commission until it was closed up'.

From judgment of nonsuit entered at the close of all the evidence, the plaintiff appeals, assigning errors.

Taliaferro & Clarkson and Joseph W. Grier, Jr., all of Charlotte, for plaintiff-appellant.

Robinson & Jones, of Charlotte, for defendant-appellee.

STACY Chief Justice.

The question for decision is whether the promise to pay the plaintiff's commission, as set out in the letter of September 1, 1944, from Palace Realty Company to U. A. Zimmerman, binds the defendant absolutely or conditionally. The trial court interpreted the stipulation as a promise to pay plaintiff's commission 'when'--and only when--'the deal is closed up', and then 'out of the sale price of the property '. The view seems to accord with the terms of the agreement as prepared by the plaintiff. Anno. 20 A.L.R. 289.

It will be noted the judgment of nonsuit is grounded on the special contract, prepared by plaintiff, where the sale failed because of the inability of the purchaser procured by the broker to complete it. Watson v. Odell, 58 Utah 276, 198 P. 772, 20 A.L.R. 280. The case is not like the usual broker's action where a responsible purchaser is procured by his efforts under a general contract, express or implied. White v. Pleasants, 225 N.C. 760, 36 S.E.2d 227; Lindsey v. Speight, 224 N.C. 453, 31 S.E.2d 371; Anno. 73 A.L.R. 926. Nor is it an instance where the sale failed of consummation because of some default on the part of the owner. Colvin v. Post Mtg. & Land Co., 225 N.Y. 510, 122 N.E. 454.

The heart of a contract is the intention of the parties. First Carolinas Joint Stock Land Bank v. Page, 206 N.C. 18, 173 S.E. 312; 12 Am.Jur. 760. This intention is to be gathered from the entire instrument, viewing it from its four corners. Krites v. Plott, 222 N.C. 679, 24 S.E.2d 531; Simmons v. Groom, 167 N.C. 271, 83 S.E. 471; Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906. If there be no dispute in respect of the terms of the contract, and they are plain and unambiguous, there is no room for construction. The contract is to be interpreted as written. American Potato Co. v. Jenette, 172 N.C. 1, 89 S.E. 791. 'If the words employed are capable of more than one meaning, the meaning to be given is that which it is apparent the parties intended them to have. ' King v. Davis, 190 N.C. 737, 130 S.E. 707, 709. It is also a rule of construction that an ambiguity in a written contract is to be inclined against the party who prepared the writing. Wilkie v. New York Mut. Life Ins. Co., 146 N.C. 513, 60 S.E. 427. Then, too, the ante litem motam practical interpretation of the parties is a safe guide in the interpretation of contracts. Cole v. Industrial Fibre Co., 200 N.C. 484, 157 S.E.

857. The present case stands or falls on the proper construction of the written agreement between the parties. Jones v. Casstevens, 222 N.C. 411, 23 S.E.2d 303.

The plaintiff takes the position that when he procured a purchaser ready, able and willing to buy the property on terms satisfactory to the owner and a binding contract of sale was entered into, 'his commission' was thereupon earned, and the stipulation that it should be paid 'when the deal is closed up' has reference to the time of payment rather than to the happening of an event upon which its payment would depend. Crowell v. Parker, 171 N.C. 392, 88 S.E. 497; Id., 175 N.C. 717, 95 S.E. 188; Harrison v. Brown, 222 N.C. 610, 27 S.E.2d 470; Anno. 51 A.L.R. 1390. To this the defendant replies, 'such might have been the contract, but it is not so nominated in the special agreement.'

It can make no difference whether the event be called a contingency or the time of performance. Certainly, under either construction, the result would be the same; since, if the event does not befall, or a time coincident with the happening of the event does not arrive, in neither case may performance be exacted. Nor will it do to say that a promise to pay 'when the deal is closed up' is a promise to pay when it ought to be closed up according to the terms of the contract. Such is not the meaning of the words used....