Thompson v. Foster

JOHNSON, J. The brokerage contract or listing here in suit does not purport to have conferred on the plaintiffs the exclusive right to sell the defendants’ property. Therefore, the legal principles involved will be stated and discussed, and should be interpreted, against that factual background. See 8 Am. Jur., Brokers, Sections 57 and 192. Ordinarily, where property is listed with a broker for sale at a stipulated price, out of which the broker’s compensation is to be paid, and a sale is effected through the broker as a procuring cause, he is entitled to compensation, even though the final negotiations be conducted by the owner, who in order to make a sale accepts a price not exceeding or less than that stipulated to the broker, the theory being that the owner waives the stipulation regarding the price, and this being so, the law will not allow the owner of property sold to reap the benefits of the broker’s labor without just reward. Therefore, in such case recovery may be had upon quantum meruit. Lindsey v. Speight, 224 N.C. 453, 21 S.E. 2d 371; Trust Co. v. Goode, 164 N.C. 19, 80 S.E. 62; Martin v. Holly, 104 N.C. 36, 10 S.E. 83; 8 Am. Jur., Brokers, Sections 172 and 190; Annotations: 43 A.L.R. 1103, 1104; 128 A.L.R. 430. *318 However, if tbe broker’s contract provides for a stipulated net price to be paid tbe owner, witb tbe broker’s compensation being contingent upon payment out of whatever sum, if any, be is able to obtain for tbe property over and above tbe fixed sum to be- obtained by tbe owner, tbe broker may not recover when tbe owner sells at tbe stipulated net price, or less, to a person to whom tbe broker first shows tbe property, unless tbe broker is able to show (1) that be was a procuring cause of tbe sale in tbe sense that be first called tbe purchaser’s attention to tbe property and started tbe negotiations which culminated in tbe sale, and (2) that be, tbe broker, was prevented by fault of tbe owner from making a sale at a sum in excess of tbe stipulated net price. See 8 Am. Jur., Brokers, Sec. 190, p. 1102; Annotations: 43 A.L.R. 1103, 1111 et seq., and 9 A.L.R. 1194. See also Mallonee v. Young, 119 N.C. 549, 26 S.E. 141; Holcomb v. Stafford, 102 Minn. 233, 113 N.W. 449; Ball v. Dolan, 21 S.D. 619, 114 N.W. 998; Gilmore v. Bolio, 165 Mich. 633, 131 H.W. 105; Karr v. Moffett, 105 Kan. 692, 185 P. 890. In Holcomb v. Stafford, supra, tbe broker was to receive as bis compensation all be could obtain for tbe property above $500. Tbe property was afterwards sold by tbe owner to tbe broker’s customer for that sum. On conflicting evidence tbe trial court found that tbe purchaser ,at all times refused to pay more than $500. Tbe Court said: “Here tbe broker was entitled to the excess over and above tbe net price to tbe owner, and be was not entitled to a commission, except on procuring a purchaser ready, able, and willing to pay more than that price.” In Gilmore v. Bolio, supra, tbe defendant authorized tbe plaintiff to sell property for $1,400 net to defendant, and tbe prospective purchaser introduced by tbe plaintiff broker refused to buy on those terms, but about six weeks later purchased from tbe defendant for $1,300. Held, that tbe plaintiff was not entitled to recover, bis right to compensation being dependent upon bis ability to obtain a purchaser for a greater sum than $1,400. Similarly, under tbe terms of tbe contract in tbe case at band tbe plaintiffs’ right to compensation was dependent upon their ability to obtain a purchaser for a sum greater than $50,000. They have alleged in substance that tbe defendants, after being advised that J. D. Crowder was a prospect, took over tbe negotiations with him, and that tbe defendants, after being offered $55,000 by Crowder, nevertheless closed tbe deal witb him at $50,000. These crucial allegations, witb others set out in tbe complaint, when taken as true and liberally construed in favor of tbe plaintiffs, as is tbe rule on demurrer (Scott v. Veneer Co., ante, 73, top p. 77, 81 S.E. 2d 146), are sufficient to state a cause of action against tbe defendants on the theory that tbe plaintiffs were tbe procuring cause of tbe sale in tbe *319 sense that Crowder was their initial prospect and that they were prevented by fault of the defendants from making a sale at a sum in excess of the stipulated net price of $50,000. This overthrows the demurrer. The judgment below is Reversed.