Gossett v. . McCracken

Stacy, J., after stating tbe case: Plaintiffs have misconceived their remedy, and tbe case bas been tried on an erroneous theory. Conceding, as plaintiffs contend, that tbe change in tbe contract from ten days to twelve days was made with tbe defendant’s approval and consent, still there was no sale of tbe property prior to revocation of tbe power to sell, and, consequently, there could be no recovery of commissions. Plaintiffs’ right of action, if such they have, is to recover damages for an alleged breach of tbe contract. Tbe commissions, called for in tbe agreement, are dependent entirely upon an execution of tbe contract and a sale of tbe property. Tbe instrument signed by tbe defendant was not an irrevocable power of agency, and it appears from all tbe evidence that tbe defendant revoked tbe power before tbe sale, even conceding that' the' contract bad not been avoided by an unauthorized change in its terms. Martin v. Holly, 104 N. C., 36. It contains no stipulation against revocation, and it is not such a power, “coupled with an interest,” as to make it irrevocable. Atlantic Coast Realty Co. v. Townsend, 98 S. E. (Va.), 684. Tbe interest, coupled with a power, which will render tbe power irrevocable, must be an interest in tbe thing itself. Missouri v. Walker, 125 U. S., 339; 31 L. Ed., 769. As said by Marshall, C. J., in Hunt v. Rousmanier, 8 Wheat., 174: “Tbe power must be engrafted on an estate in tbe thing. Tbe words themselves seem to import this meaning. ‘A power coupled with an interest’ is a power which accompanies or is connected with an interest. Tbe power and tbe interest are united in tbe same person. But if we are to understand by tbe word ‘interest’ an interest in that which is to be produced by tbe exercise of tbe power, then they are never united. Tbe power, to produce tbe interest, must be exercised, and by its exercise is extinguished. Tbe power ceases when tbe interest commences, and, therefore, cannot, in accurate law language, be said to be ‘coupled’ with it.” *118 The general rule is stated in 21 R. C. L., 810, as follows: “There seems to be no doubt that a power coupled with an interest cannot be revoked, but the interest required is an interest in the subject of the power, and not an interest in that which is to be produced by the exercise of the power.” The plaintiffs would be entitled to recover as damages for a breach of the contract all expenses incurred by them prior to revocation of the power to sell, and a reasonable compensation for any labor performed and services rendered which were fairly within the contemplation of the parties at the time of the making of the contract. Advertising Co. v. Warehouse Co., 186 N. C., 197; Olive v. Kearsley, 183 N. C., p. 198; Hagood v. Holland, 181 N. C., p. 64; Brewington v. Loughran, 183 N. C., 558. Rut commissions, as such, are recoverable on the theory of a completed contract. This is not our case. Of course, if the plaintiffs, prior to revocation, had succeeded in making a bona fide sale of the property in accordance with the terms of the contract, they would be entitled to have estimated in the assessment of damages any loss of profits actually sustained by reason of the defendant’s failure to perform the contract on his part. Olive v. Kearsley, supra, and cases there cited. The instant case is so nearly parallel to the case of Real Estate Co. v. Sasser, 179 N. C., 497, and the principles of law applicable are so thoroughly discussed in that case, with full citation of authorities, that we deem it unnecessary to do more than refer to the decision in the Sasser case as determinative of the rights of the parties here. Our attention has been called to a number of apparently contrary decisions in other jurisdictions, but we think the position here taken accords with the juster rule. It is in keeping with our former adjudications. The cause will be remanded for another hearing. New. trial.