111 S.E. 171 | N.C. | 1922
This is an action by a broker on an alleged indebtedness of $250 for making sale of land. The defendant listed the land for sale *209 with the plaintiff and a number of other brokers, and the same was sold to one Price. The defendant was introduced to Price by one Carter (to whom the defendant paid $25 for making the sale). The plaintiff was allowed to testify over the defendant's objection that the attendance of Price was procured by the "influence of plaintiff," acting through one McGhee, who was dead at the time of the trial. The defendant testified that he sold the land himself to Price, that plaintiff was not there and said nothing to him about selling the land until after it was sold.
The contest was over the right of the defendant to revoke the agency of brokerage. Verdict and judgment for plaintiff; appeal by defendant. The court instructed the jury: "Now it is the law in North Carolina that when land is placed in the hands of a broker for sale, and that broker has begun negotiations, that the owner cannot take the matter into his own hands and complete the sale and refuse to pay commission. Now, if you find from the evidence in this case — it is not refuted that the land was placed in the hands of Olive for sale — if you find from the greater weight of the evidence in this case that he had begun negotiations and brought the buyer down, then I instruct you that the defendant could not take the matter out of his hands and avoid paying his commission."
The instruction that if the broker "had begun negotiations that the owner cannot take the matter into his own hands and complete the sale and refuse to pay commission" was error. There was evidence from the defendant which denies that Olive effected the sale. He testified: "I placed my land with Olive for sale. I listed this land with 15 or 20 concerns that sell. I told a number of others that I would pay them to send me a purchaser, among them was Abe Carter, who had come from Rockingham County, and who was the first man who brought Price (the purchaser) to me. Olive said nothing to me about selling the land until after it was sold and the trade closed, then he claimed a commission."
Abe Carter testified that the purchaser, Price, lived on an adjoining farm to his in Rockingham County; that he told him about the Kearsley place, and he agreed to go with him to look it over, and he bought the place from Kearsley.
The law applicable in this case is thus stated in Abbott v. Hunt, 129 N.C. in which, on page 404, it is said: "An agency can be revoked at any time before a valid and binding contract, within the *210
(197) scope of the agency, has been made with a third party. The only exception is an agency coupled with an interest, and that must be an interest in the subject of the agency, and not merely something collateral, as commissions or compensation for making sale. Hartley'sAppeal, 53 P. St. 212; 91 Am. Dec. 207, which holds that a power of attorney by which the attorney is to receive as compensation `one-half of the net proceeds' is not a power coupled with an interest, and is revocable. This case cites a very clear enunciation of the same principle by Marshall, C. J., in Hunt v. Rousmanier, 8 Wheat. 174, which is also cited by this Court (as to agencies to solicit insurance) in Ins. Co. v.Williams,
* * * * *
"In Atkinson v. Pack,
This has been often quoted and always followed by this Court. In Thomasv. Gwyn,
In Trust Co. v. Adams,
In Wright v. Shepard,
In Real Estate Co. v. Sasser,
In Hagood v. Holland,
In House v. Abell,
In the present case there was ample evidence, if believed, not only that the defendant had revoked the agency before the sale was made, but that it was actually made by another agency whom the defendant paid for the service, and he was entitled to have this phase of the evidence presented to the jury.
For this error there must be a
New trial.
Cited: Gossett v. McCracken,