Campbell v. . Sloan

Walker, J., after stating the case as above: The defendant was served with the summons in Buncombe County, and contends that this did not give the justice’s court, where the action was originally commenced, any jurisdiction of his person, as he lived in Haywood County. There is nothing in this objection, as the statute only forbids a justice from issuing process in a civil action beyond his county. Rev., 1447; Austin v. Lewis, 156 N. C., 461. The other question relates to the merits, and calls for a consideration of the evidence and the charge of the court upon the issues as to defendant’s liability. It is apparent the case involved largely the question of fact, whether the plaintiff, as broker of the defendant, brought the parties together for the purpose of making the contract of lease. There was evidence tending to show that the plaintiff started the negotiations between them, and was employed by the defendant to assist in him in the matter, because of his special skill in the business of selling and leasing property, he being a real estate broker, having his business office in the city of Asheville.' There can be no question that the plaintiff would be entitled to his commissions if the lease had been effected at, or before, the time when the Government officer, Major King, wrote that the property “would not meet any present need of the Department.” The defendant contends that he had no communication with plaintiff between 15 December, 1917, and 8 February, 1918, when defendant addressed a letter to Major General Gorgas, who was Surgeon-General of the Army and stationed at Washington, D. 0., calling his attention to the Sulphur Springs Hotel at Waynesville, N. C., as a suitable building for tuberculosis patients, while plaintiff contended that he continued to act for the defendant up to the very time when the trade was closed with the Government for a lease of the property, upon the conditions specified in the above statement of the case. One of the principal controversies between the parties is, whether plaintiff was retained to lease the property as a hospital for convalescents only, at $4,800 per annum, or as a hospital generally, that is, for all kinds of patients, without restrictions to convalescents, the place finally being leased for tubercular patients, at $10,000 with certain stipulations as to improvements to be made by the defendant and a Red Gross building to be erected by the Government. Defendant’s improvements cost him between $4,000 and $5,000; the Red Cross building cost $12,000, and he bought it for $1,100. Defendant, therefore, contends that this was an entirely new contract, proposed and initiated by him, in his letter of 8 February, 1918, to General Gorgas, and thereafter conducted by him, without aid from Campbell, to the end, while the plaintiff asserts *81 tbat it was but a part of one continuing transaction, and tbat it was his personal efforts bestowed on the matter to bring about the lease tbat really caused it to be made.' Tbat be brought Major Bruns, who represented the Government, to the meeting at "Waynesville where the negotiations were concluded, and tbat it really and mainly was because of adopting bis suggestions as to the meeting tbat the negotiations became successful. The jury could reasonably find from the evidence tbat plaintiff’s services contributed largely to the fortunate result of the "Waynes-ville conference. There was evidence to sustain plaintiff’s allegation tbat there was no restriction as to the kind of hospital intended by the parties, and the jury must have found tbat there was none. All these questions were properly submitted to the jury, and they have found for the plaintiff. Now as to the law governing the relation of these parties. The learned judge tried the case according to the principle applied in Trust Co. v. Goode, 164 N. C., 19, which is thus stated: “ W hen an owner places land with a real estate broker for sale, he agrees, in the absence of any special contract, to pay the customary commission or brokerage, in case a sale is consummated with a purchaser, who was led to begin the negotiation through the intervention of the broker. It is immaterial that the owner, after the broker has interested the purchaser, secretly pursues the negotiations and himself completes the sale, or that the owner of his own accord effects a sale at a less price than that he gave the broker. If any act of the broker in pursuance of his authority to find a purchaser is the initiatory step that leads to the sale consummated, the owner must pay the commission. The procuring cause of sale is such intervention of the broker for that purpose as constitutes the foundation on which the negotiation is begun. The law is clear that a broker does not forfeit his commission because the owner avails himself of the services rendered to sell at a price less than that limited, and the owner’s position is not improved if he seeks to fortify his evasion of liability by telling the broker after the rendition of the services he will pay no commission, if he (the owner) sells at such price.” And again: “Where a broker authorized to sell at private sale has commenced negotiations, the owner cannot, pending the negotiations, take it into his own hands and complete it, either at or below the price limited, and then refuse to pay the commissions,” citing Martin v. Holly, 104 N. C., 36. According to this authority, the judge has strictly followed the correct precedents, for his language was identical, or at least substantially so, with that used in Trust Co. v. Goode, supra. The Court further said, and it also is pertinent to this case: “The decisions cited by the defendant (Mallonee v. Young, 119 N. C., 549; Abbott v. Hunt, 129 N. C., 403; Trust Co. v. Adams, 145 N. C., 161; Clark v. Lumber Co., 158 N. C., 139) are based upon a different state of facts, and are *82 easily distinguished from this ease as made out upon the plaintiff’s evidence.” It is objected that the judge qualified the proposition, that the broker does not forfeit his commission because the owner, while availing himself of the broker’s services, sells at a less sum than the specified price, referred to in Goode’s case by this observation: “And the owner’s position is not improved, if he seeks to fortify his evasion of liability by telling the broker after the rendition of the service, that he will pay no commission if he (the owner) sells at such a price.” Here the defendant did not deny his liability to the broker for commissions until after the lease had been made, and it must be true that such a tardy repudiation of the agreement, which the jury found was made, will not affect the plaintiff’s right to be compensated according to the contract. It came too late, and the defendant could not enjoy the benefit of the broker’s services and refuse to pay for them. This is what the Court meant, when using the language taken from Trust Co. v. Goode, supra. As properly said in that case, Trust Co. v. Adams, supra, and the other cases cited with it above, are not in point. There we held that the services must result in a contract of sale, or lease, as the case may be, adding that, “Unsuccessful efforts, however meritorious, afford no ground of action. Where his acts bring about no agreement, or contract, between his employer and the purchaser, by reason of his failure in the premises, the loss of expended and unremunerated effort must be all his own. He loses the labor and skill used by him which he staked upon success. If there has been no contract, and the seller is not in default, then there can be no reward. His commissions are based upon the contract of sale,” citing Sibbald v. Iron Co., 83 N. Y., 378. But here plaintiff’s contention was that he rendered continuous service, which did result in the contract, and the jury so found, under a singularly clear-cut statement of the issues between the parties, and the evidence applicable thereto. The use of the term “evasion of liability,” when considered with proper reference to its setting in the charge, if prejudicial at all, is not sufficiently so to induce a reversal of the judgment. S. v. Smith, 164 N. C., 476; Brewer v. Ring, 177 N. C., 476; 3 Graham & Waterman on Trials, 1235. There must be some substantial ground upon which a new trial is asked before it will be granted, as said in those cases, and not something that could have, worked no harm to the appellant. If the plaintiff’s evidence is true, and the jury has so found, his services had very much to do with the good result achieved in the. final negotiations with the Government’s officer. The other exceptions are groundless. We are of the opinion that this case was correctly tried, and therefore affirm the judgment. No error.