Harrison v. . Brown
24 S.E.2d 470
N.C.
1943
Check Treatment
Devin, J.

The plaintiff was permitted by order of court to institute an independent action against the receiver to determine the validity of his claim. McIntosh, p. 1011. A jury trial having been waived, the trial judge could have found the facts with the force and effect of a jury verdict, and declared his conclusions of law arising thereon. The statute requires that when issues of fact are tried by the judge the decisions shall contain a statement of the facts found and conclusions of law separately. C. S., 569; McIntosh, p. 553; Dailey v. Ins. Co., 208 N. C., 817, 182 S. E., 332. Here, however, the judge elected to dispose of the case by a judgment of nonsuit. This permitted the plaintiff to challenge the correctness of the judgment below if there was ally substantial evidence presented in support of his claim. As was said by Winborne, J., in Ins. Co. v. Carolina Beach, 216 N. C., 778 (789), 7 S. E. (2d), 13, where jury trial was waived and the court made no specific findings of fact, “. . . the effect of the written judgment is that when taken in the light most favorable to plaintiffs, all the evidence is insufficient to support a favorable finding for plaintiffs on any issue raised by the pleadings.” Hence the only question presented for our decision is whether the evidence in the view most favorable for the plaintiff was sufficient to withstand a motion for nonsuit.

*614 A receiver is a ministerial officer of tbe court (S. v. Whitehurst, 212 N. C., 300, 193 S. E., 657), and can exercise only tbe power and authority conferred upon him by tbe court. He is controlled by its proper decrees, and tbe property be administers is said to be in custodia leges. But within tbe limits of tbe authority expressly conferred upon him, in dealing with others be may not evade tbe ordinary incidents of contractual and property rights on tbe ground that be is an administrative agent of tbe court, and by bis acts which be performs within tbe scope of tbe authority given, be may impose liability upon tbe estate be is appointed to administer. While tbe statute, C. S., 1209 (4), empowers the receiver to convey tbe estate, ordinarily, tbe receiver of a corporation may not be permitted to dispose of a substantial part of tbe assets with which be is entrusted without authorization from tbe court, and tbe sale is subject to confirmation, unless authority to convey on specified terms is expressly given beforehand. High on Receivers (3rd Ed.), see. 199 (c).

In tbe case at bar the order of court not only authorized tbe sale of tbe property in question, but prescribed tbe method by which tbe price should be determined and fixed tbe compensation of those employed in connection therewith. Tbe receiver was directed to sell and convey tbe property at tbe price approved by tbe Advisory Committee “without further order of court.” Tbe price of tbe Blue Ridge Building was accordingly fixed at $50,000. J. A. Carroll was appointed tbe real estate broker to have charge of tbe sales of this and other properties. Pursuant to this authority Carroll listed tbe property with tbe members of tbe real estate board upon tbe terms specifically mentioned in tbe order of court, that is, if another broker procured a purchaser at tbe price approved by tbe Advisory Committee, such broker would receive 3 % and Carroll 2% of tbe purchase price. Within a short time a broker procured a purchaser for tbe Blue Ridge Building at $50,000 cash. Tbe purchaser was well able to pay. He put up $2,500 as evidence of good faith and as part payment. Tbe offer in writing was addressed to Carroll and by him transmitted to tbe receiver. The offer was submitted to the Advisory Committee and approved. Tbe receiver conformable to instructions signed a formal acceptance of tbe offer as made.

Considering tbe evidence offered by the plaintiff in tbe light most favorable for him, as is the rule on a motion for nonsuit, in accord with tbe principle enunciated in Trust Co. v. Adams, 145 N. C., 161, 58 S. E., 1008, and House v. Abell, 182 N. C., 619, 109 S. E., 877, we are of opinion that plaintiff’s claim for commission earned should not have been dismissed by judgment of nonsuit. Tbe negotiations for tbe sale were under Carroll’s charge. As a result of bis activity a responsible purchaser was procured, and an apparently valid contract was executed on *615 tbe prescribed terms. He bad performed all tbe things necessary to entitle him to tbe compensation specified in tbe order of court. His assignment to tbe plaintiff of tbe commission earned was agreed to by tbe receiver.

True, tbe sale was not consummated. Tbe record discloses no reason why this was not done. It appears that tbe purchaser declined to pay on tender of deed, and shortly thereafter filed petition to tbe court to be permitted to withdraw bis offer and recover tbe advanced payment. Over tbe objection of tbe receiver this was allowed by tbe court. No facts were found by tbe court. Doubtless tbe judge bad good reason for bis action, but none appears in tbe record on which tbe case comes to us for review.

Tbe receiver resists payment of tbe 2% commission to tbe plaintiff as assignee of Carroll, principally, on two grounds; first, that tbe sale was not consummated, through no fault of tbe receiver, and, second, because in bis acknowledgment of tbe assignment of Carroll’s rights to tbe plaintiff, tbe receiver added tbe clause “unless otherwise ordered by tbe court.” Neither of these positions can be sustained.

The plaintiff’s rights were not dependent upon tbe subsequent action of York, tbe other broker, as bis assignor’s compensation was independent of that accruing to tbe procuring broker, and was fixed by tbe terms of tbe order of court. Neither Carroll nor tbe plaintiff was a party to tbe proceeding wherein Judge Phillips adjudged tbe purchase offer of no force and effect, and ordered tbe return of tbe initial payment, and no reference was made in that order to tbe compensation of tbe broker. Tbe plaintiff cannot be held debarred by that order. Nor was Carroll’s right to compensation precluded by tbe failure of tbe purchaser to fulfill bis contract and complete tbe purchase. He was not tbe agent or employee of Badgett. He was employed under order of court by tbe receiver, with a definite compensation fixed for specified service. Under tbe evidénce appearing in tbe record bis compensation would be regarded as a necessary expense of tbe receivership. Mortgage Co. v. Winston-Salem, 216 N. C., 126, 6 S. E. (2d), 501.

Tbe general rule is stated in 8 Am. Jur., 1099, as follows: “It may be generally stated that when a real estate broker procures a purchaser who is accepted by tbe owner, and a valid contract is drawn up between them, tbe commission for finding such purchaser is earned, although tbe purchaser later defaults or refuses to consummate tbe contract.” This rule is equally applicable where no known reason for tbe default of tbe purchaser appears. 51 A. L. R., 1392. Tbe receiver consented to tbe assignment of Carroll’s commission to tbe plaintiff Harrison, and agreed “to pay to tbe assignee tbe amount stipulated above out of tbe funds now in my bands, which funds represent tbe deposit made by 'the pur- *616 cbaser of the building hereinabove described, unless otherwise ordered by the court.” The last clause we think susceptible of the reasonable interpretation as having reference only to thé fund from which the receiver expected to pay it, and on a motion for nonsuit plaintiff is entitled to the aid of every reasonable inference from the facts in evidence. Certainly, if the compensation had already been earned in accordance with the court’s order, the receiver could not properly confine the payment to a particular fund. Nor would we be disposed to hold that the plaintiff’s case should fail because the judge subsequently held the purchase offer-ineffective and permitted the withdrawal of the fund mentioned. Judge Phillips’ last order did not refer to the matter of plaintiff’s compensation. Even if the words relied on by the defendant be understood to impose a condition on the right to the commission itself, as being dependent on the subsequent order of the court, we doubt the power of the court to decree avoidance of the obligation of a valid contract, after compensation thereunder had been earned. Defendant’s contention that the plaintiff was reimbursed by Carroll is not borne out by the evidence.

Considering the plaintiff’s evidence in the most favorable light for him, we are constrained to hold that the judgment of nonsuit was improvidently entered, and must be reversed and the cause remanded for further proceeding.

Reversed.