Renfro v. Meacham , 50 N.C. App. 491 ( 1981 )

274 S.E.2d 377 (1981)

Rebecca B. RENFRO d/b/a Renfro Brokerage
v.
Frank B. MEACHAM.

No. 808SC522.

Court of Appeals of North Carolina.

February 3, 1981.

Taylor, Warren, Kerr & Walker by Robert D. Walker, Jr., Goldsboro, for the plaintiff-appellant.

Biggs, Meadows, Batts, Etheridge & Winberry by William D. Etheridge, Rocky Mount, for the defendant-appellee.

HEDRICK, Judge.

The sole question presented by this appeal is whether the court erred in granting summary judgment for defendant. G.S. § 1A-1, Rule 56(c) in pertinent part provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

Upon a motion for summary judgment, the burden is on the moving party to establish the lack of a triable issue of fact. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Baumann v. Smith, 41 N.C.App. 223, 254 S.E.2d 627 (1979). The motion must be considered in a light most favorable to the party opposing summary judgment, Baumann v. Smith, supra; Peterson v. Winn-Dixie of Raleigh, Inc., 14 N.C.App. 29, 187 S.E.2d 487 (1972), and the papers of the moving party will be carefully scrutinized. Kidd v. Early, supra; Baumann v. Smith, supra.

In contending that genuine issues of material fact do exist in the present case, plaintiff first argues that "a material issue of fact obviously exists as to the intent of the defendant in the wording of the listing agreement of May 20, 1978." Plaintiff points out that her deposition indicates that defendant instructed her as to how many acres of woodland and how many acres of cultivated land existed on the subject property, and that defendant not only specified a total price for the property but that he also specified a separate price, or equivalent price per acre, for the "open" or cultivated portion, with the remaining part of the total purchase price allotted to the "woodsland" acreage. In contrast, the testimony at defendant's deposition indicates that the 20 May 1978 agreement did not conform to his understanding and that the property was not to be sold other than as a complete unit, thus raising an issue of fact as to how the parties intended the property to be sold. We do not agree. Where the language of a contract is clear and unambiguous, the court is obligated to interpret the contract as written, and the court cannot look beyond the terms to see what the intentions of the parties might have been in making the agreement. Root v. Allstate Insurance Co., 272 N.C. 580, 158 S.E.2d 829 (1968).

In the present case, the listing agreement clearly and unmistakably indicates that the sales price was to be $1,250,000 for the entire property, or $687,500 (or an equivalent price per acre) for the "open" portion (550 acres) and $562,500 (or an equivalent price per acre) for the "woodsland" portion (1,088 acres). The court cannot therefore look beyond the agreement to see if the parties had differing intentions as to whether the property was to be sold as a unit or in separate parts; the language of the listing agreement obviously indicates that the property could be sold either way. Thus, no issue of fact could possibly arise as to those intentions.

Plaintiff's next argument follows from the first. She contends that based upon the "conflicting statements" of the parties as to whether the property could only be sold as a unit, a factual issue arises as to whether plaintiff was empowered to obtain a purchaser for either the total sales price or for a sales price based upon the amount of "open" or "woodsland" acreage. Since we have determined that the listing agreement is unambiguous and controlling with respect to whether the property could be sold as one unit or in parts, this argument deserves no further attention.

Plaintiff lastly contends a genuine issue of material fact exists as to whether defendant failed to cooperate with plaintiff in the selling of the property as required under paragraph five of the listing agreement. Plaintiff argues in support of this contention that defendant never gave any reasons for his refusal to accept the offers from Canal Industries, Inc. and that she "had a great deal of difficulty in obtaining the cooperation of the defendant in that she was never able to contact him or find him." In our view, however, an issue of fact has not been raised. Plaintiff's complaint made no allegation that defendant "failed to cooperate." The record contains no evidence that defendant made himself unavailable to plaintiff, restricted access to the property to prevent plaintiff from showing it, or in any other way hindered plaintiff from performing the duties as set forth in the agreement.

Furthermore, defendant's refusal to accept either the written offer or the oral offer tendered on behalf of Canal Industries, Inc. was justified under the circumstances. While it is true, as plaintiff argues, that a broker is entitled to a commission if he obtains during the period of the agency a prospect ready, willing, and able to purchase the premises on the terms specified by the owner, Thompson-McLean, Inc. v. Campbell, 261 N.C. 310, 134 S.E.2d 671 (1964), even if the owner voluntarily fails to comply with his agreement to sell, Bonn v. Summers, 249 N.C. 357, 106 S.E.2d 470 (1959), the circumstances of this case clearly indicate that Canal Industries, Inc. was not "ready, willing, and able" to purchase on defendant's terms as set out in the listing agreement. The terms of both the written offer and the oral offer substantially differed from the terms of sale in the listing agreement.

The written offer provided that the sales price for the entire tract of 1638 acres would be "$1,250,000 or equivalent price per acre based on survey to be run at buyer's expense," while the listing agreement made no provision for an alteration in the sales price of the entire tract if a survey should determine the actual acreage to be different. The written offer also varies from the terms of the listing agreement with respect to the method of payment. Under the written offer, if Canal proceeded under the "equivalent price per acre" clause, it would have to pay one-half of the purchase price at closing, and one-half of the purchase price six months thereafter, regardless of whether the acreage was "open" or "woodsland." Proceeding with a "price per acre" transaction under the listing agreement, however, would dictate a different method of payment, i. e., the entire purchase price in cash to be paid at closing, for all "woodsland" acreage. The written offer further was at variance with the listing agreement since the written offer had several provisions that were not mentioned in the listing agreement, e. g., a provision for proration of taxes between Canal and defendant, and a provision that the offeror's [Canal] earnest money deposit would be forfeited to defendant as liquidated damages if the offeror defaulted, subject to a deduction for plaintiff's commission.

The oral offer also varied substantially from the listing agreement. This offer was subject to the condition that defendant grant to Canal an option, for a term of six to nine months for a sum to be agreed upon between Canal and defendant, to have the right to survey the premises and elect at the end of the stated time to exercise its option to purchase or to forfeit the option price to defendant. This is, in essence, a counteroffer; nothing in the listing agreement contemplated giving an option to a prospective purchaser, and the listing agreement indicates in paragraph nine defendant's intention to part with the property as soon as he could find a complying buyer: "Seller agrees to give purchaser possession of the property immediately upon closing subject only to existing acricultural [sic] tenancy which expires December 31, 1978." Since this record therefore contains no issue of fact as to whether defendant "failed to cooperate," plaintiff's argument must fail.

After careful examination, we can find no genuine issue of material fact in this record. We note that the listing agreement was prepared on plaintiff's form and it clearly indicates that a commission would be paid by the seller if a purchaser were procured. No purchase of defendant's property, however, has taken place. We conclude defendant carried his burden of establishing the lack of a triable issue of fact, and summary judgment for defendant is

Affirmed.

CLARK and WHICHARD, JJ., concur.