McCoy v. Wachovia Bank & Trust Co.

Adams, J. The only assignment of error is the- appellant’s exception to the judgment of the Superior Court, and on appeal to this Court no other is to be considered. Smith v. Winston-Salem, 189 N. C., 178; Davis v. Wallace, 190 N. C., 543; Smith v. Texas Co., 200 N. C., 39; Bakery v. Insurance Co., 201 N. C., 816. We find no error in the judgment of nonsuit. A broker who undertakes to negotiate a sale of property is not entitled to commissions unless he finds a purchaser who is ready, able, and willing to complete the purchase on the terms agreed upon by him and the vendor. The right to commissions depends on the successful performance of the broker’s services, and nothing is to be paid unless a bargain is effected. A prospective agreement is not sufficient. Mallonee v. Young, 119 N. C., 549; Trust Co. v. Adams, 145 N. C., 161; Crowell v. Parker, 171 N. C., 392. The material allegations in the sixth, seventh, and eighth paragraphs of the complaint are that the plaintiff found a purchaser who would pay $12,000 for the property but the defendant would not agree to give terms. This signified that the defendant offered to sell only for cash; and the plaintiff expressly testified that the proposed purchaser “was never ready, willing, and able to pay $12,000 cash; he never was in position to pay all cash.” Other parts of her testimony demonstrate that between her and the defendant there was no definite contract; they never agreed on the terms of the sale. The plaintiff testified: “I saw Mr. Morris and told him that Mr. Wolfe wanted to purchase it and was willing to pay $4,300 down, and would pay the balance in six, twelve, and eighteen months, and would prefer to have eight, sixteen, and twenty-four *723 months.Mr. Morris said they were willing to accept $4,300 down, but would not state any terms; that they would be willing to give liberal terms, but would not state wbat the liberal terms were. He didn’t know exactly wbat tbey would do, but would give terms. He didn’t state exactly wbat tbey would do tben.” It is evident tbat, according to tbe plaintiff’s testimony, sbe bad no definite terms upon wbicli to offer tbe farm for sale. As there was no binding contract between tbe parties tbe defendant did not become liable to tbe plaintiff by a subsequent consummation at a sale under tbe principle stated in Trust Co. v. Goode, 164 N. C., 19. Tbe judgment allowed tbe defendant’s motion for a directed verdict on tbe counterclaim and remanded tbe cause for further proceedings. Tbe defendant bad tbe burden of establishing tbe counterclaim and a verdict may not be directed in favor of tbe party upon whom rests tbe burden of proof. Eller v. Church, 121 N. C., 269. Assuming, however, tbat tbe court intended to say tbat tbe jury should be instructed to answer tbe issues as to tbe counterclaim in favor of tbe defendant if tbe facts were found to be as all tbe evidence tended to show, we find tbe evidence uncertain as to whether tbe defendant bad knowledge of such facts as would make its action in taking tbe notes equivalent to bad faith. C. S., 3037. Tbe burden was on tbe defendant to show tbat it was a bona fide purchaser of tbe notes; it was not sufficient to show tbat it purchased them for value before maturity; it was required to show tbat it bad no actual notice or knowledge of tbe plaintiff’s equity. Bank v. Branson, 165 N. C., 344. Tbe issue was submitted to tbe jury in tbe county court and answered adversely to tbe defendant, but as tbe disposition of tbe case in tbe Superior Court deprived tbe defendant of tbe benefit of its exceptions to tbe plaintiff’s evidence concerning tbe counterclaim, tbe appropriate relief can be granted only by a new trial on this issue. Tbe judgment is Modified and affirmed.