Beckham v. Klein , 59 N.C. App. 52 ( 1982 )

295 S.E.2d 504 (1982)

Wallace L. BECKHAM and Outer Beaches Realty, Inc.
v.
Walter S. KLEIN, Real Estate.

No. 811SC1299.

Court of Appeals of North Carolina.

October 5, 1982.

Twiford, Derrick & Spence by Russell E. Twiford, Elizabeth City, for plaintiffs-appellants.

Sanford, Adams, McCullough & Beard by J. Allen Adams and Charles C. Meeker, Raleigh, for defendant-appellee.

WELLS, Judge.

The principal question we address in this appeal is whether a real estate broker who has not procured a sale under an express agreement may nevertheless become entitled to compensation for services rendered the seller under principles of quantum meruit. We answer this question in the negative and affirm the judgment below.

By their first assignment of error, plaintiffs contend that the evidence before the court was insufficient to support the findings numbered 13, 20, and 21. A trial court's findings of fact in a nonjury trial have the force and effect of a jury verdict and are conclusive on appeal if supported by competent evidence, even if there is evidence to the contrary which would support different findings. Henderson County v. Osteen, 297 N.C. 113, 254 S.E.2d 160 (1979); Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975). We have carefully reviewed the record and find that each of the challenged findings of fact is supported by competent evidence. These assignments are therefore overruled.

Plaintiffs contend that they were entitled to a recovery of defendant based on their contract. Generally, a broker becomes entitled to a commission only if he is the procuring cause of the sale. Realty Agency, Inc. v. Duckworth & Shelton, Inc., 274 N.C. 243, 162 S.E.2d 486 (1968); Realty, Inc. v. Whisnant, 41 N.C.App. 702, 255 S.E.2d 647, disc. rev. denied, 298 N.C. 299, 259 S.E.2d 912 (1979). Of course, the contract of the parties can vary this general rule. Realty Agency, Inc., supra. For a broker to be the "procuring cause", the sale must be the direct and proximate result of his efforts or services. Id.

The facts found in the present case show that the parties had a contract which did not take this case out of the general rule stated above. These findings support the conclusion that plaintiffs were not the procuring cause of the sale. The trial court's denial of recovery to plaintiffs based on the contract was correct.

The trial court found that Beckham performed various services for defendant including preparing maps and aerial photographs and driving defendant, Canada and Davis around and over the subject property. Plaintiffs contend that even if they were entitled to no recovery on the express contract, the trial court erred in denying recovery in quantum meruit for services rendered. Recovery in quantum meruit may be had where the facts show that an implied contract exists. Helicopter Corp. v. Realty Co., 263 N.C. 139,139 S.E.2d 362 (1964). But it is well established that where an express contract concerning the same subject matter is found, no contract will be implied. Supply Co. v. Clark, 247 N.C. 762, 102 S.E.2d 257 (1958); Realty, Inc., supra; Campbell v. Blount, 24 N.C. App. 368, 210 S.E.2d 513 (1975). Where parties expressly agree, they are presumed to have contemplated and assumed the risks normally attendant to their bargain. All the services Beckham rendered and upon which plaintiffs rely in their quantum meruit theory are services contemplated in the parties' express agreement and the express contract therefore controls. Realty, Inc., supra.

The judgment of the trial court is

Affirmed.

VAUGHN and WEBB, JJ., concur.