Stockton v. Lenoir, (No. 637.)
| Citation | 198 N.C. 148,150 S.E. 886 |
| Decision Date | 30 December 1929 |
| Docket Number | (No. 637.) |
| Court | North Carolina Supreme Court |
| Parties | STOCKTON . v. LENOIR. |
Appeal from Superior Court, Macon County; Harwood, Special Judge.
Action by J. H. Stockton against H. R. Lenoir, trustee. Judgment for plaintiff, and defendant appeals. New trial.
Civil action to recover commissions on the sale of real estate evidenced by two notes.
On September 18, 1925, plaintiff, a realtor, negotiated a sale of land held by the defendant, as trustee for himself and others, to W. D. Almazov and Sophie Albert for $38,000. For his commissions the plaintiff was to be paid 10 per cent, of the purchase price of the land, as and when collected from the purchasers, and he has received his commissions on the cash payment made at the time of sale, as well as on all payments subsequently made by Almazov and Albert.
Purchase-money notes, secured by deed of trust on the property, were executed by the purchasers to the defendant, trustee, and corresponding commission notes, representing 10 per cent, of the purchase-money notes, were executed by defendant to plaintiff. Each of the notes given to plaintiff for his commissions contains the following stipulation: "To be paid out of funds from corresponding note of W. D. Almazov and Sophie Albert, when collected." And it was the understanding and agreement that the plaintiffs commission note, representing 10 per cent, of the corresponding purchase-money note, was to be paid only out of funds collected from Almazov and Albert, so the defendant alleged and offered to prove.
Upon default In the payment of the pur-chase-mOney notes, the deed of trust was foreclosed, and the defendant, in his original capacity as trustee, became the highest bidder for the land at $11,000, which is less than half the amount remaining unpaid on the purchase-money notes.
The trial court held that the plaintiff was entitled to collect on his commission notes 10 per cent, of the amount bid at the sale, or $1,100 and instructed the jury to this effect. From the judgment rendered on the verdict, thus directed, the defendant appeals, assigning errors.
T. J. Johnston, of Franklin, and Moody & Moody, of Murphy, for appellant
R. D. Sisk, of Franklin, Edwards & Leatherwood, of Bryson City, and George B. Pat-ton, of Franklin, for appellee.
STACY, C. J. (after stating the ease). [1] It appears that the plaintiff and the defendant, who are presumed to know best what was intended by their agreement, have...
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