Real Estate Exchange & Investors, Inc. v. Tongue , 17 N.C. App. 575 ( 1973 )

194 S.E.2d 873 (1973) 17 N.C. App. 575

REAL ESTATE EXCHANGE & INVESTORS, INC., a corporation
v.
Ben TONGUE et al.

No. 7310SC52.

Court of Appeals of North Carolina.

March 14, 1973.

Cotten & Cotten by Michael A. Cotten, Fuquay-Varina, for plaintiff appellant.

James M. Kimzey, Raleigh, for defendant appellees.

PARKER, Judge.

The judgment appealed from was dated 15 June 1972. The record on appeal was docketed in this Court on 2 November 1972, which was more than ninety days from the date of the judgment. No order of the trial tribunal extending the time for docketing appears in the record. For failure of appellant to docket the record on appeal within the time allowed by the rules of this Court, this appeal is subject to dismissal. Rule 5, Rules of Practice in the Court of Appeals. State v. Hunt, 14 N.C.App. 626, 188 S.E.2d 546; Phillips v. Wrenn Brothers, 12 N.C.App. 35, 182 S.E.2d 285; Smith v. Starnes, 1 N.C.App. 192, 160 S.E.2d 547.

Nevertheless, we have reviewed the record and find the judgment in accord with applicable principles of law. An agent employed to sell his principal's property may not himself become the purchaser absent both a good faith full disclosure to the principal of all material facts surrounding the transaction and consent to the transaction by the principal after receiving such disclosure. This general rule applies although no positive fraud or unfairness may have been practiced by the agent and although he purchases the property "at a fair market price, or at the price set by the principal, and even though he was unable to sell to anyone else at the price fixed." 3 Am.Jur.2d, Agency, § 226, p. 600. Decisions of our Supreme Court support this statement of the general rule. Cotton Mills v. Manufacturing Co., 221 N.C. 500, 20 S.E.2d 818; Mealor v. Kimble, 6 N.C. 272. In the present case the allegations in plaintiff's complaint establish that defendants did not consent that plaintiff might become the purchaser; plaintiff expressly alleged that no response was received from their offer to purchase and that their subsequent tender was refused by the defendants. Since plaintiff's own allegations establish that it had no lawful right to effect a sale of the property to itself, it was not entitled to commissions for attempting to negotiate such a sale, and judgment dismissing the action on the pleadings was proper.

Appeal dismissed.

CAMPBELL and MORRIS, JJ., concur.