Clark v. East Lake Lumber Co.

Allen, J. The two causes of action set out in the complaint are inconsistent, and both cannot be true. In the first, the plaintiffs seek to recover commissions because they contend they found a purchaser for the land of the defendant, who was ready and able to pay the purchase price, and so notified the defendant, who refused to convey; and in the second, to recover damages because the defendant represented the title to the land to be good; that they relied on these representations and found a purchaser for the land, who, after examination, refused to buy because the title was defective. ¥e will, however, consider the causes of action separately. The right of the plaintiffs to recover commissions is dependent upon proof that they had found a purchaser for the land, ready, able, and willing to buy, upon the terms contained in the paper of 24 May, 1905, and that notice of this fact was given to the defendant. The defendant had the right to prescribe the terms of sale, and is not liable for commissions unless those imposed were complied with; and, on .the other hand, the plaintiffs cannot be deprived of compensation because of failure by the defendant to convey, if they found a purchaser who notified the defendant of his readiness and ability to comply with the option. Martin v. Holly, 104 N. C., 38; Mallonee v. Young, 119 N. C., 552; Trust Co. v. Adams, 145 N. C., 166. In the last cited case Justice Walker, speaking for the Court, says: “It is now the established doctrine of the courts that, in the absence of any usage or contract, express or implied, to the contrary, or conduct of the seller preventing a completion of the bargain by the broker, an action by the latter for his com *145 missions will not lie until it is shown that be bas procured and effected a sale of tbe property upon tbe terms fixed by tbe vendor. It is not enough that tbe broker bas devoted bis time, labor, or money to advance tbe interests of bis employer. Unsuccessful efforts, however meritorious, afford no ground of action. "Where bis acts bring about no agreement or contract between bis employer and the purchaser, by reason of his failure in tbe premises, tbe loss of expended and unremunerated effort must be all bis own. lie loses tbe labor and skill used by him which be staked upon success. If there bas been no contract, and tbe seller is not in default, then there can' be no reward. His commissions are based upon tbe contract of sale.” We must then inquire into tbe terms of tbe contract of 24 May, 1905, and see what was required of tbe purchaser before tbe defendant was under any legal obligation to convey. Tbe contract of 24 May is an option, which is a right acquired by contract to accept or reject a present offer to sell (Trogden v. Williams, 144 N. C., 199), and is no more than a proposition to sell until accepted (Hardy v. Ward, 150 N. C., 391), and tbe acceptance must be identical with tbe offer to be effective (Gregory v. Bullock, 120 N. C., 262; Tanning Co. v. Telegraph Co., 143 N. C., 378; Green v. Grocery Co., 153 N. C., 412). In Tanning Co. v. Telegraph Co., supra, it was held that an acceptance for 1,500 barrels of oil was not good when tbe offer was to sell about 1,500 barrels, and in Green v. Grocery Co., supra, it is said, quoting from tbe Supreme Court of tbe United States: “It is an undeniable principle of tbe law of contracts that an offer of a bargain by one person to another imposes no obligation upon tbe former until it is accepted by tbe latter, according to the terms in which tbe offer was made. Any qualification of or departure from those terms invalidates tbe offer, unless the same be agreed to by tbe person who made it.” Applying these principles to tbe evidence, we are of opinion that there bas been no acceptance of tbe offer to sell on tbe terms contained in tbe option, and that tbe plaintiffs are not entitled to recover commissions. (1) Tbe offer is to sell 167,555 acres, more or less; tbe acceptance is to buy tbe whole of 167,555 acres. *146 (2) Tbe offer is to sell and to execute a deed with general warranty; tbe acceptance is to buy, provided a clear and undisputed title can be made for tbe whole. (3) Tbe offer provides that tbe purchase, when consummated, shall be closed at Manteo, and tbe purchasers shall give notice to tbe defendant at least five days prior to tbe date, when they will be ready to close said purchase, of their election to do so at that time; and such notice was not given. We do not bold that there must be an acceptance in tbe exact language of tbe offer, but must recognize tbe right of parties to impose tbe terms upon which they will enter into a contract of sale, and in our opinion tbe acceptance of 15 June differed materially from tbe offer of 24 May. If tbe defendant bad acted upon tbe acceptance, and bad tendered a deed to tbe purchaser, he might refuse to pay tbe purchase money, because of a discrepancy in tbe acreage, as bis acceptance was for tbe whole, or if tbe title to tbe whole was good, be could still decline to pay because of a dispute. There is a vast difference between a good title and one that is undisputed, and the purchaser bad a clear conception of this, as shown by bis statement to bis attorney that be was not buying a lawsuit, when told by him that tbe title was in litigation, but be thought it could be cleared up. Tbe notice was also material, and contemplated that tbe purchaser should fix a date at Manteo, not less than five days from tbe time of tbe notice, when tbe parties could meet and consummate tbe sale, which was not done. There is no evidence that tbe purchasers went to Manteo after 15 June, and one of them testified that be remained in Norfolk one day after sending tbe telegram, and then went to bis home in Minnesota and beard no more of tbe matter until this action was instituted. Tbe objections to tbe maintenance of tbe second cause of action are equally fatal: (1) Tbe complaint alleges tbe execution of tbe contract of 24 May, 1905, and that tbe damages sought to be recovered were on account of expenses incurred pursuant thereto, while tbe evidence of tbe plaintiff is that they finished tbe work causing tbe expense by 1 May, before tbe contract was made. *147 (2) The cause of action is based upon a false representation as to title, and in any event it was necessary to prove that the representation was relied on. The contract and the evidence offered by the plaintiffs show conclusively that this could not be so. The contract gives time to the prospective purchasers for an examination of the titles, and requires them to employ a competent attorney and commence an examination of the title of all of said property without delay, and one of the purchasers testified that the report of the attorney was unsatisfactory, and that he told him he was not buying a lawsuit. (3) No evidence was offered to show the amount of work done or the value thereof. (4) No connection is shown between the representation alleged to have been made by the defendant and the damages claimed. Upon the whole record, we find no error. Affirmed.