Goldston Brothers v. Newkirk , 233 N.C. 428 ( 1951 )

64 S.E.2d 424 (1951) 233 N.C. 428

GOLDSTON BROTHERS, Inc.
v.
NEWKIRK et ux.

No. 241.

Supreme Court of North Carolina.

April 11, 1951.

Gavin, Jackson & Gavin, Sanford, for plaintiff, appellant.

Rivers D. Johnson, Warsaw, and S. Ray Byerly, Sanford, for defendants, appellees.

JOHNSON, Justice.

The contract declared on provides that the plaintiff shall be paid "at the close of sale ten percent in cash of the gross receipts of sale, as evidenced by contracts signed by purchasers." The contract also stipulates that the plaintiff shall collect for the defendants "the first payment on the property sold."

Hence, plaintiff's duties did not terminate on knocking the land off to the high bidders. Plaintiff was required to close the sale for the defendants by collecting the initial payments of purchase money and turning over to defendants purchasers who were bound by signed contracts. These duties to collect purchase money and bind the purchasers stand as antecedent obligations which were required to be performed by the plaintiff as conditions precedent to its right to receive commissions. Page on Contracts, Vol. 5, Sec. 2960, p. 5226; 17 C.J.S., Contracts, §§ 452 and 456, pp. 932 and 937; 12 Am.Jur., Contracts, Secs. 327 and 328, pp. 881 and 883. Corinthian Lodge v. Smith & Baker, 147 N.C. 244, 61 S.E. 49; Ducker v. Cochrane, 92 N.C. 597. See also Jones v. Palace Realty Co., 226 N.C. 303, 37 S.E.2d 906; Horney v. Mills, 189 N.C. 724, 128 S.E. 324; Clark v. Seay, 140 Okl. 198, 282 P. 357.

In 12 Am.Jur., p. 882, it is stated: "If one promise is first to be performed as the condition of the obligation of the other, that which is first to be performed must be done or tendered before the party who is to do it can sustain a suit against the other."

And the general rule is that performance of antecedent obligations may not be excused by subsequent inability to perform on account of unexpected difficulties or unforeseen impediments, short of prevention by wrongful act or conduct of the other party to the contract. 12 Am. Jur., pp. 883 and 884; Mizell v. Burnett, 49 N.C. 249. See also Clancy v. Overman, 18 N.C. 402.

This appeal is grounded on the assumption that plaintiff was entitled to recover below on either of three theories, namely: (1) performance, (2) prevention of performance by wrongful conduct of the defendants; or (3) recovery on implied assumpsit or quantum meruit. The court below declined to allow recovery on either theory, and no error has been made to appear upon the record as presented.

1. Performance. The plaintiff alleges that it "performed and discharged all of its duties in making said sale in accordance with said contract." And in its brief plaintiff contends that the evidence offered below supports the allegations of performance. However, we are unable to so interpret the record. The evidence fails to show that the plaintiff closed the sale by binding the purchasers with signed contracts and collecting the initial payments of purchase money out of which commissions were to be paid. True, the witness J. W. Goldston, Jr. on cross examination referred to certain "tickets of agreement of purchasers." However, none of these tickets were introduced in evidence, nor were their contents shown. It nowhere appears that the purchasers were bound in writing by their bids. There is evidence that plaintiff collected the initial payments of purchase money from some of the purchasers; but it likewise appears that these payments were refunded after some of the purchasers had stopped payment on their checks. It does not appear that the defendants authorized the return of these deposits. Performance of the plaintiff's antecedent obligations in respect to closing the sale has not been made to appear. Therefore the rule explained in Eller v. Fletcher, 227 N.C. 345, 42 S.E.2d 217, and companion cases cited by plaintiff does not control here. Nor does it appear that the plaintiff either alleged or proved waiver of performance. 17 C.J.S., Contracts, § 574, p. 1209.

2. Prevention of performance by wrongful conduct of the defendants. As a general rule, prevention by one party excuses nonperformance of an antecedent obligation by the adversary party, and ordinarily the party whose performance is thus prevented is discharged from further performance and may recover as in case of breach. McCurry v. Purgason, 170 N. C. 463, 87 S.E. 244; Hayman v. Davis, 182 N.C. 563, 109 S.E. 554; 12 Am.Jur., p. 885; 17 C.J.S., Contracts, § 468, p. 966, et seq.

However, in order to excuse nonperformance, the conduct on the part of the party who is alleged to have prevented performance "must be wrongful, and, accordingly, in excess of his legal rights." Page on Contracts, Vol. 5, Sec. 2919, p. 5145. And it is generally held that the prevention of performance by interference of a third party, independent of wrongful conduct of the other party to the contract, will not excuse performance of an antecedent obligation. 17 C.J.S., Contracts, § 459, p. 949 and 17 C.J.S., Contracts, § 468, p. 967; Cremer v. Miller, 56 Minn. 52, 57 N.W. 318. Here the suit and notice of lis pendens filed by Babcock Lumber Company against the defendants is the only circumstance in evidence tending to show that the defendants prevented the plaintiff from closing the sale according to the terms of the contract. There is no supporting evidence tending to show that the Babcock lis pendens was justifiably filed because of some previous breach of its legal rights occasioned by wrongful conduct of the defendants. Nor does the record suggest connivance between Babcock Lumber Company and the defendants. Besides, defendants do not allege wrongful prevention. Therefore upon the record as presented, the court below did not err in declining to allow recovery on the theory that plaintiff's failure to close the sale was prevented by wrongful conduct of the defendants.

The intimation in the judgment below that further proceedings in this case be held in abeyance pending the trial of the Babcock case has practical pertinency. But it is assumed that the intimation was intended only as a suggestion. It may not be interpreted as requiring a postponement of further proceedings in the instant case. 17 C.J.S., Continuances, §§ 10 and 24, pp. 196 and 205.

3. Implied assumpsit or quantum meruit. Ordinarily, where one party has endeavored in good faith to perform his contractual obligations and while partially performing, though failing in some particulars, he has conferred on the other party substantial benefits, he may recover on quantum meruit as upon an implied promise to pay for the benefits so received from partial performance. 17 C.J.S., Contracts, §§ 508 and 511, pp. 1085 and 1093. Ordinarily, however, this rule does not apply where no benefit accrues to the party sought to be charged. Elliott on Contracts, Vol. 3, Sec. 2101, p. 293. Nor can there be a "recovery on a quantum meruit for services rendered under a special contract, where by reason of a failure to meet its conditions no pay was due on such contract." 12 Am.Jur., Contracts, Sec. 328, p. 884. Here the sale was never closed. It does not appear that any benefits accrued to the defendants from the plaintiff's services. The contract sued on is entire, Brewer v. Tysor, 48 N.C. 180 and not divisible, Chamblee v. Baker, 95 N.C. 98. The plaintiff may recover, if at all, only upon the special contract sued on. See McIntosh, Selected Cases on Contracts, Synopsis p. 39. The court below correctly declined to submit the issue on quantum meruit.

The defendants also excepted to the judgment below and appealed. However, no errors were assigned and no exceptions were brought forward in their brief. The appeal appears to have been abandoned. It is dismissed. Bank of Pilot Mountain v. Snow, 221 N.C. 14, 18 S.E.2d 711; In re Will of Hargrove, 207 N.C. 280, 176 S.E. 752.

Except as herein modified, the judgment of the court below is upheld.

Modified and affirmed.