263 S.E.2d 38 | N.C. Ct. App. | 1980
RITCH REALTORS, INC., t/a Century 21 Ritch Realtors, a corporation
v.
David P. KINARD and Donna Kinard.
Court of Appeals of North Carolina.
*39 John F. Ray, Charlotte, for plaintiff-appellee.
Scarborough, Haywood & Merryman by C. B. Merryman Jr., Charlotte, for defendant-appellants.
HARRY C. MARTIN, Judge.
By their stipulation in open court at the time of the hearing of the summary judgment motions, defendants concede the validity of the contract sued upon and their breach of it. In so doing, they admitted their liability to plaintiff and left unresolved only the question of damages. A stipulation is a judicial admission, dispensing with proof, recognized and enforced by the courts as a substitute for legal proof. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).
Based upon the materials before it, including defendants' stipulation, the trial court found plaintiff entitled to recover and awarded plaintiff $3,960 in damages. This sum was evidently the result of applying the six percent commission called for in the contract to the $66,000 purchase price set out in the agreement. Plaintiff, however, failed to offer any evidence that during the term of the contract it produced an able, willing buyer to purchase the property for the specified price of $66,000. Therefore, plaintiff is not entitled to recover commissions set out in the contract. The commissions are dependent entirely upon an execution of the contract and a sale of the property or plaintiff's producing an able and willing buyer of the property upon the terms set out in the agreement within the time limitations contained in the agreement. Gossett v. McCracken, 189 N.C. 115, 126 S.E. 117 (1925). This, plaintiff has failed to do.
Under the facts of this case, plaintiff is entitled to recover as damages for the breach of the contract by defendants all expenses incurred by it prior to revocation of the power to sell and a reasonable compensation for any labor performed and services rendered which were fairly within the contemplation of the parties at the time of the making of the contract. Gossett v. McCracken, supra; Advertising Co. v. Warehouse Co., 186 N.C. 197, 119 S.E. 196 (1923).
The result is: The summary judgment for plaintiff is affirmed in determining that defendants are liable to plaintiff for the breach of contract. The award of damages in the summary judgment is vacated, and the case is remanded to the District Court of Mecklenburg County for the determination of damages.
Affirmed in part. Vacated and remanded.
MORRIS, C. J., and HILL, J., concur.
