Burge v. First Southern Savings Bank

ARNOLD, Chief Judge. Plaintiffs argue that they are entitled to a commission on the sale of defendant’s property because their prospect ultimately purchased the property. A real estate broker is entitled to a commission if the broker proves (1) the existence of a binding contract between the broker and seller and (2) the broker’s performance [650] of that contract. Thompson-McLean, Inc. v. Campbell, 261 N.C. 310, 313, 134 S.E.2d 671, 674 (1964). The performance generally required of the broker is to find a purchaser ready, willing, and able to purchase the seller’s property on the terms provided in the broker’s contract. Id. Plaintiffs here did not procure such a purchaser, and they are therefore not entitled to a commission. The contract required a purchaser who was willing to purchase the nine acre lot for $100,000.00 per acre, and who was willing to pay the brokers’ commission. Although plaintiffs’ prospect offered to purchase the nine acre lot, he made the offer conditioned on the acquisition of an additional one and a half acre lot which defendant did not own. As a result, defendant was required to negotiate with a third party for the sale of the additional acreage, a duty which defendant did not assume under the contract with plaintiffs. In addition, the purchaser was not willing to pay the brokers’ commission. Negotiations for the sale of defendant’s lot, in which defendant promised to try to acquire the additional acreage, continued past the expiration date of the contract, but no agreement arose from those negotiations. Thus, plaintiff’s allegations, from which these facts were drawn, show that plaintiffs did not fulfill their obligations under the contract. They did not produce a purchaser ready, willing, and able to purchase on the terms provided in the contract. Nonetheless, plaintiffs argue that they are entitled to a commission because they were the procuring cause of the sale. Although plaintiffs originally put the purchaser in contact with defendant, the ultimate sale did not materialize until sixteen months after the initial contact and not until defendant (1) arranged for the sale of a lot in addition to the nine acre lot it owned, (2) contracted for the services of a new broker, and (3) assumed the responsibility for paying the new broker’s commission. Plaintiffs cannot contend in the face of these facts that they were the procuring cause of the sale. See Hecht Realty, Inc. v. Whisnant, 41 N.C. App. 702, 255 S.E.2d 647, disc. review denied, 298 N.C. 299, 259 S.E.2d 912 (1979). The allegations show that plaintiffs did not perform as the contract required, and in failing to perform plaintiffs are not entitled to a commission under a procuring cause theory even though their efforts might have been advantageous to defendant. Bolich-Hall Realty & Ins. Co. v. Disher, 225 N.C. 345, 348, 34 S.E.2d 200, 202 (1945). [651] Plaintiffs also asserted a claim for punitive damages. They were not entitled to punitive damages, obviously, unless they asserted a cause of action through which nominal or compensatory damages were recoverable, Onslow Wholesale Plumbing & Elec. Supply, Inc. v. Fisher, 60 N.C. App. 55, 63, 298 S.E.2d 718, 723 (1982), aff’d, 308 N.C. 540, 302 S.E.2d 632 (1983), and, as discussed above, plaintiffs failed to state such a claim. Plaintiffs’ claim for punitive damages was, therefore, properly dismissed. Plaintiffs finally argue that their claim for damages under N.C. Gen. Stat. § 75-1.1 (1988) was improperly dismissed. We can say as a matter of law that plaintiffs’ allegations are insufficient to create a cause of action for unfair and deceptive practices. Plaintiffs contend that (1) defendant’s sale of the property without plaintiffs’ involvement and (2) defendant’s refusal to reveal the details of the sale to plaintiffs constitute violations of G.S. § 75-1.1. As settled above, defendant was under no obligation to plaintiffs arising out of the sale after plaintiffs failed to fulfill their obligations under the contract. Therefore, defendant’s failure to involve plaintiffs does not create a cause of action under Chapter 75. Affirmed. Judges COZORT and LEWIS concur.