Hayman v. Ross

HEDRICK, Judge. The one question presented on this appeal is whether the uncontroverted facts entitle the defendant to judgment as a matter of law. Since this is a transaction involving the transfer of real property it is governed by G.S. 22-2 (the statute of frauds) which reads in pertinent part as follows: “All contracts to sell or convey any lands, tenements, or hereditaments, or any interest in or concerning them . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.” It is settled law in this jurisdiction that the owner of land may sell this land through an agent and the agent may sign a contract to sell and convey in his own name or in the name of his principal (s). Lewis v. Allred, 249 N.C. 486, 106 S.E. 2d 689 (1959). Furthermore, in 12 Am. Jur. 2d, Brokers, § 67, p. 821, it is stated: “Ordinarily a broker does not act in a dual capacity as the representative of both sides to a negotiation, but only as the agent of the party who first employed him. Once a deal is concluded, however, the law permits him to act as the representative of both parties if they assent thereto, for the purpose of signing a memorandum sufficient to take the transaction out of the statute of frauds.” (Emphasis added.) In the present case plaintiff does not contend that the defendant signed a contract or memorandum to sell her property to plaintiff. However, plaintiff does contend that Frank B. Cook in writing the letter of 27 January 1973 was acting as agent for both parties and that this letter supplies the necessary writ [627] ing required by G.S. 22-2. We do not agree. This letter is as follows: “Exhibit C — Letter From Frank B. Cook dated January 27, 1973 Mrs. Mary Norton Ross 5414 Riviera Drive Coral Gables, Florida Re: Shop Sale Dear Mrs. Ross: I have received a check from Mr. W. Zack Hayman in the amount of $2,500.00 (Two Thousand Five Hundred Dollars) to be deposited in my Trust Account and held as a binder on the sale of your Highlands Dress Shop, Building, Contents and Good Will excepting such personal items as agreed to by you and Mr. Hayman. The sale to include Lots 201-303-205 and 207 as shown by a plat drawn by Charlie McDowell, Land Surveyor, dated March 11, 1968. Seller to pay closing cost. 1973 Real Estate Taxes to be prorated as of date of closing. It being agreed and understood that the sale price is $60,000.00 (Sixty Thousand Dollars) purchaser to assume the outstanding mortgage or Deed of Trust in the amount of $9,800.00, (Nine Thousand Eight Hundred Dollars) leaving a balance of $50,200.00 (Fifty Thousand Two Hundred Dollars) to be paid in cash at Closing around February 16, 1973. The sale is subject to a good and merchantable title. Sincerely yours, s/ F.B.C. Frank B. Cook FBC/p cc: Mr. W. Z. Hayman Post Office Box 305 Thomasville, Georgia 31792” A careful analysis of all of the evidence before us clearly establishes that any agreement between the plaintiff and defend [628] ant with respect to the sale of the property in question was oral and that Cook was acting solely on behalf of the plaintiff and was not authorized (either expressly or impliedly) by the defendant to act on her behalf. Thus, there being no writing sufficient to comply with G.S. 22-2, we are of the opinion that the trial court correctly concluded that the defendant was entitled to judgment as a matter of law. Affirmed. Judges Parker and Vaughn concur.