Hagood v. . Holland , 181 N.C. 64 ( 1921 )

Civil action, brought to recover damages for an alleged breach of contract, the material parts of which were as follows:

26 August, 1919.

I have employed Hagood-Grantham Real Estate Company to sell for us our farm situate in the county of Jones, State of North Carolina, to wit: (here appeared description of property), at the price of $20,000 net, on the following terms: One-third cash, balance three years, 6 per cent interest, if the same is sold by 1 January, 1920. Said Hagood-Grantham Real Estate Company to pay all costs of advertising they may choose to do.

This 26 August, 1919. (Signed) Mrs. L. E. HOLLAND. J. C. HOLLAND. Witness: J. C. SINGLETON, 217 Castle Street, Wilmington, N.C.

On the back of this agreement is the following indorsement:

Mr. Hagood Grantham, we must have $500 by the first of November to confirm the trade; if not, the within agreement is null and void. We have to do this in case you do not sell, so as to give us time to rent out for another year, 1920. J. C. HOLLAND.

Defendants admitted the execution of said contract; but contended, and offered evidence tending to show, that the same was revoked on 3 October, 1919. The defendants tendered an issue upon the question of revocation, which the court declined to submit. Exception duly noted.

On the issue of damages, plaintiff was permitted to testify, over objection, that when the partnership firm of Hagood-Grantham Real Estate Company, composed of B. E. Hagood and L. T. Grantham, was dissolved, plaintiff paid his copartner $1,000 for his interest in the contract sued on in this action.

Upon issues joined, there was a verdict and judgment in favor of the plaintiff. Defendants appealed. Under authority of Abbott v. Hunt, 129 N.C. 403, and Real Estate Co.v. Sasser, 179 N.C. 497, we think his Honor should have submitted to the jury an issue on the defendant's alleged revocation of the contract. TheSasser case is on all-fours with the case at bar — the two being identical in principle — and what is said there need not be repeated here. We consider the above cases controlling authorities.

We think the court also erred in permitting the plaintiff to testify to the effect that he had paid his copartner the sum of $1,000 for his interest in the contract. In no event could this be considered as a proper item in assessing the plaintiff's damages. It was not money expended in an effort to secure a purchaser; nor was it any loss of profits within the rule applicable to such loss. Plaintiff purchased the entire contract subject to the defendants' right of revocation; and such a purchase was not within the contemplation of the parties at the time of its execution. This would take the amount thus expended out of the category of recoverable damages.

The remaining exceptions need not be considered, as the questions presented by them may not arise upon another hearing.

New trial.