Goldston Brothers v. Newkirk

JOHNSON, J. The contract declared on provides that the plaintiff shall be paid “at the close of sale ten per cent in cash of the gross receipts of sale, as evidenced by contracts signed by purchasers.” The contract also stipulates that the plaintiff shall collect for the defendants “the first payment on the property sold.” Hence, plaintiff’s duties did not terminate on knocking the land off to the high bidders. Plaintiff was required to close the sale for the defendants by collecting the initial payments of purchase money and turning over to defendants purchasers who were bound by signed contracts. These duties to collect purchase money and bind the purchasers stand as antecedent obligations which were required to be performed by the plaintiff as conditions precedent to its right to receive commissions. Page on Contracts, Vol. 5, Sec. 2960, p. 5226; 17 C.J.S., Contracts, Secs. 452 and 456, pp. 932 and 937; 12 Am. Jur., Contracts, Secs. 327 and 328, pp. 881 and 883. Corinthian Lodge v. Smith, 147 N.C. 244, 61 S.E. 49; Ducker v. Cochrane, 92 N.C. 597. See also Jones v. Realty Co., 226 N.C. 303, 37 S.E. 2d 906; Horney v. Mills, 189 N.C. 724, 128 S.E. 324; Clark v. Seay, 140 Okla. 198, 282 P. 357. In 12 Am. Jur., p. 882, it is stated: “If one promise is first to be performed as the condition of the obligation of the other, that which is first to he performed must he done or tendered before the party who is to do it can sustain a suit against the other.” And the general rule is that performance of antecedent obligations may not be excused by subsequent inability to perform on account of unexpected difficulties or unforeseen impediments, short of prevention by wrongful act or conduct of the other party to the contract. 12 Am. Jur., *432 pp. 883 and 884; Mizell v. Burnett, 49 N.C. 249. See also Clancy v. Overman, 18 N.C. 402. This appeal is grounded on the assumption that plaintiff was entitled to recover below on either of three theories, namely: (1) performance, (2) prevention of performance by wrongful conduct of the defendants; or (3) recovery on implied assumpsit or quantum meruit. The court below declined to allow recovery on either theory, and no error has been made to appear upon the record as presented. 1. Performance. The plaintiff alleges that it “performed and discharged all of its duties in making said sale in accordance with said contract.” And in its brief plaintiff contends that the evidence offered below supports the allegations of performance. However, we are unable to so interpret the record. The evidence fails to show that the plaintiff closed the sale by binding the purchasers with signed contracts and collecting the initial payments of purchase money out of which commissions were to be paid. True, the witness J. W. Goldston, Jr., on cross-examination referred to certain “tickets of agreement of purchasers.” However, none of these tickets were introduced in evidence, nor were their contents shown. It nowhere appears that the purchasers were bound in writing by their bids. There is evidence that plaintiff collected the initial payments of purchase money from some of the purchasers; hut it likewise appears that these payments were refunded after some of the purchasers had stopped payment on their checks. It does not appear that the defendants authorized the return of these deposits. Performance of the plaintiff’s antecedent obligations in respect to closing the sale has not been made to appear. Therefore the rule explained in Eller v. Fletcher, 227 N.C. 345, 42 S.E. 2d 217, and companion cases cited by plaintiff does not control here. Nor does it appear that the plaintiff either alleged or proved waiver of performance. 17 C.J.S., Contracts, Sec. 574, p. 1209. 2. Prevention of performance hy wrongful conduct of the defendants. As a general rule, prevention by one party excuses nonperformance of an antecedent obligation by the adversary party, and ordinarily the party whose performance is thus prevented is discharged from further performance and may recover as in case of breach. McCurry v. Purgason, 170 N.C. 463, 87 S.E. 244; Hayman v. Davis, 182 N.C. 563, 109 S.E. 554; 12 Am. Jur., p. 885; 17 C.J.S., p. 966, et seq. However, in order to excuse nonperformance, the conduct on the part of the party who is alleged to have prevented performance “must he wrongful, and, accordingly, in excess of his legal rights.” Page on Contracts, Vol. 5, Sec. 2919, p. 5145. And it is generally held that the prevention of performance by interference of a third party, independent of wrongful conduct of the other party to the contract, will not excuse performance of an antecedent obligation. 17 C.J.S., p. 949, and 17 C.J.S., *433 p. 967; Cromer v. Miller, 56 Minn. 52, 57 N.W. 318. Here tbe suit and notice of lis ‘pendens filed by Babcock Lumber Company against tbe defendants is tbe only circumstance in evidence tending to sbow tbat tbe defendants prevented tbe plaintiff from closing tbe sale according to tbe terms of tbe contract. There is no supporting evidence tending to sbow tbat tbe Babcock lis pendens was justifiably filed because of some previous breach of its legal rights occasioned by wrongful conduct of tbe defendants. Nor does tbe record suggest connivance between Babcock Lumber Company and tbe defendants. Besides, defendants do not allege wrongful prevention. Therefore upon the record as presented, tbe court below did not err in declining to allow recovery on tbe theory tbat plaintiff’s failure to close tbe sale was prevented by wrongful conduct of tbe defendants. Tbe intimation in tbe judgment below tbat further proceedings in this case be held in abeyance pending tbe trial of tbe Babcock case has practical pertinency. But it is assumed tbat tbe intimation was intended only as a suggestion. It may not be interpreted as requiring a postponement of further proceedings in the instant case. 17 C.J.S., pp. 196 and 205. 3. Implied assumpsit or quantum meruit. Ordinarily, where one party has endeavored in good faith to perform bis contractual obligations and while partially performing, though failing in some particulars, be has conferred on tbe other party substantial benefits, be may recover on quantum meruit as upon an implied promise to pay for tbe benefits so received from partial performance. 17 C.J.S., Contracts, Secs. 508 and 511, pp. 1085 and 1093. Ordinarily, however, this rule does not apply where no benefit accrues to tbe party sought to be charged. Elliott on Contracts, Vol. 3, Sec. 2101, p. 293. Nor can there be a “recovery on a quantum meruit for services rendered under a special contract, where by reason of a failure to meet its conditions no pay was due on such contract.” 12 Am. Jur., Contracts, Sec. 328, p. 884. Here tbe sale was never closed. It does not appear tbat any benefits accrued to tbe defendants from tbe plaintiff’s services. Tbe contract sued on is entire (Brewer v. Tysor, 48 N.C. 180) and not divisible (Chamblee v. Baker, 95 N.C. 98). Tbe plaintiff may recover, if at all, only upon tbe special contract sued on. See McIntosh, Selected Oases on Contracts, Synopsis p. 39. Tbe court below correctly declined to submit tbe issue on quantum meruit. Tbe defendants also excepted to tbe judgment below and appealed. However, no errors were assigned and no exceptions were brought forward in their brief. Tbe appeal appears to have been abandoned. It is dismissed. Ba nk v. Snow, 221 N.C. 14, 18 S.E. 2d 711; In re Will of Hargrove, 207 N.C. 280, 176 S.E. 752. Except as herein modified, tbe judgment of tbe court below is upheld. Modified and affirmed.