Morgan v. Oates

WEBB, Judge. The defendant assigns as error the testimony of W. T. Williams that he was ready, willing, and able to purchase the [595] property and Mr. Williams’ testimony that he and his wife were ready, willing, and able to purchase the property. He argues as to the testimony that W. T. Williams was ready, willing, and able to purchase the property that the evidence showed that the contract the plaintiff read over the telephone to B. H. Oates showed Virginia Williams as the purchaser. For this reason, the plaintiff had not produced W. T. Williams as a purchaser of the property at the time the agency was revoked, and his testimony as to being ready, willing, and able to purchase was not competent. He argues that Mr. Williams’ testimony that Mrs. Williams was ready, willing, and able to purchase the property had to be based on hearsay testimony because the only way he would know she was ready and willing to buy the property would be based on what she told him. We believe this testimony of Mr. Williams was properly admitted. The plaintiffs action is based on the breach of an agency contract in which he contended that he was given the non-exclusive right to sell property for the defendants for a commission and that he produced a purchaser ready, willing, and able to purchase the property before the defendant revoked the contract. See White v. Pleasants, 225 N.C. 760, 36 S.E. 2d 227 (1945). All the evidence showed that Mr. Williams had negotiated for the property and intended to put it in his wife’s name. The gravamen of the plaintiffs claim is that the defendant refused to pay the commission after he had produced a buyer. This is not an action for breach of contract to sell the property. We believe the testimony as to Mr. Williams’ agreement to buy the property and put it in his wife’s name was competent to show the plaintiff had produced a buyer ready, willing, and able to purchase the property. The form of the contract should not control the admission of this evidence. We do not believe Mr. Williams’ testimony as to his wife’s willingness and readiness to purchase should have been excluded as hearsay. In the context of this case we believe Mr. Williams meant that he was confident he could get his wife to put the property in her name and if she did not, he would put it in his own name. The defendant also argues that by letting Mr. Williams testify that he and his wife were ready, willing, and able to purchase the property, the court allowed the witness to express an opinion on the very question that was for the jury to decide. See [596] 1 Stansbury’s N.C. Evidence § 126 (Brandis rev. 1973) for opinion testimony that invades the province of the jury. We do not discuss the question of whether this testimony allowed the witness to express an opinion on the question the jury was to decide because we do not believe it was opinion testimony. Mr. Williams was stating a fact when he said he and his wife were ready, willing, and able to purchase the property. It may have been his conclusion based on other facts which he did not state, but we do not believe it was such a conclusion as to cross the line to become opinion. See 1 Stansbury’s N.C. Evidence § 122 (Bran-dis rev. 1973). The defendant by his second assignment of error challenges the denial of his motions for a directed verdict, judgment notwithstanding the verdict, and a new trial. He contends the court was in error because there was not sufficient evidence that a brokerage contract existed between the plaintiff and the appellant. We believe the testimony of the plaintiff was specific that the defendant B. H. Oates, Jr. agreed to pay him a ten percent commission if he could sell the property on certain terms, and the plaintiff produced a buyer before the termination of the agency contract who agreed to buy on the terms specified by Mr. Oates. This assignment of error is overruled. Defendant, by his last assignment of error, contends it was error for the court to charge the jury that if they were satisfied by the greater weight of the evidence that plaintiff had produced W. T. Williams before the brokerage contract was revoked as a buyer ready, willing, and able to buy the property in accordance with the terms imposed by the defendant, they would answer an issue favorably to the plaintiff. This assignment of error is overruled. No error. Chief Judge MORRIS and Judge WHICHARD concur.