THOMPSON-McLEAN, INC. v. P. L. CAMPBELL, 261 N.C. 310

Sharp, J. “It is established law in this jurisdiction that a real estate broker is not entitled to commissions or compensation unless he has found a prospect, ready, able and willing to purchase in accordance with conditions imposed in the broker’s contract.” Sparks v. Purser, 258 N.C. 55, 127 S.E. 2d 765. Therefore, for a broker to recover he must establish (1) a binding contract and (2) performance on his part. The plaintiff bases this action upon the agreement which the parties made on October 18, 1961. That agreement was not entirely in writing.

The portion which related to the mode of paying the seventy-one percent of the purchase price was oral. However, a contract between a broker and a landowner to negotiate a sale of the latter’s land is not required to be in writing. Carver v. Britt, 241 N.C. 538, 85 S.E. 2d 888. Plaintiff concedes that no method for paying the balance of the purchase price above the cash down payment was fixed on October 18, 1961.

At that time the parties merely agreed that they would subsequently work out such terms, but it was expressly stipulated by defendant that, as “a condition prerequisite" to any sale, the manner of payment must be to his “best taxj advantage.” The defendant contends that he later fixed the terms for the payment of the seventy-one percent balance by requiring that it be seemed by a first mortgage and paid in ten annual installments at six percent interest. If he did, it is clear from the evidence that plaintiff never secured a purchaser willing and able to purchase upon those terms.

If he did not specify definite terms, the condition precedent to the formation of a binding contract was never fulfilled. The condition that the method and manner of payment be subsequently worked out was not, as in Carver v. Britt, supra, a mere detail relating to the ultimate performance of an existing contract.

Until such terms were specified by the defendant, after consultation with his attorney and his accountant, and accepted by the plaintiff, there was no valid and en-forcible brokerage contract. “To constitute a valid contract the parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms are not settled, there is no¡ agreement.” Goeckel v.

Stokely, 236 N.C. 604, 73 S.E. 2d 618. “Consequently, the acceptance of a proposition to make a contract, the terms of which are to be subsequently fixed, does not constitute a binding obligation.” 1 Elliott on Contracts, § 175; Croom v. Lumber Co., 182 N.C. 217, 108 S.E. 735. This case is analogous to that of McCoy v. Trust Co., 204 N.C. 721, 169 S.E. 644 in which a real estate broker sued for a commission. She had procured a purchaser willing to purchase the land at defendant’s price of $12,000.

Plaintiff testified that defendant’s agent told her “they were willing to accept $4,300 down, but would not state any terms; that they would be willing to give liberal terms, but would not state what the liberal terms were. He didn’t know exactly what they would do, but would give terms. He didn’t state exactly what they would do then.” This Court said: “It is evident that, according to the plaintiff’s testimony, she had no definite terms upon which to offer the farm for sale.” The judgment of nonsuit was sustained.

Where one agrees to sell land for a certain price, “Terms: cash or contract,” the broker has authority to sell only upon terms and conditions to be agreed upon and which are satisfactory and acceptable to the landowner. White v. Turner, 164 Kan. 659, 192 P. 2d 200. If the details of the terms are never given to the broker by the owner, he is precluded from producing a buyer, ready, able and willing to buy on the terms fixed by the principal. Pugh v. Dollahan, 49 N.M. 228, 160 P. 2d 951.

It cannot be seriously contended that a binding contract of sale was created by the defendant’s conditional acceptance of the offer to purchase dated November 17, 1961. The short answer to such a contention is that the checks totaling 135,000, deposited as earnest money by Akins and! Talley with the plaintiff on November 20, 1961 in accordance with the requirement in defendant’s acceptance, were withdrawn and destroyed on the same day. At that time, according to plaintiff, defendant still had not indicated how he wanted the balance paid.

Whether Akins and Talley would have met these requirements when they became known, is a matter of conjecture. After they took up their checks on November 20th, Akins and Talley did not pursue their offer of November 17th further. Two other offers to purchase were made in December. One proposed to secure the balance of the purchase price by a second mortgage; the other, by a trust fund or escrow account which apparently offered defendant no tax saving.

It seems that Akins and Talley were at all times able and willing to pay the entire purchase price in cash, but an offer to purchase property for cash does not entitle the broker to his commission if the landowner has specified deferred payments. Annot., 18 A.L.R. 2d 376, 380. The final offer in January 1962 provided that the balance be secured by a first mortgage but called for a cash payment of only $50,000 which was to be divided between all the co-owners of the property. Defendant accepted none of these propositions. In 12 Am.

Jur. 2d, Brokers § 187, we find the following: “Where the listing agreement fails to fix the terms for the sale or exchange of property, or specifies only part of the terms with the understanding that further details are subject to negotiation between the principal and the customer, the principal has been held free to terminate the negotiations without liability to the broker.

Moreover, in such a case the broker may be denied compensation unless he produced a customer ready, able, and willing to buy on such terms as the principal may require, or as he accepts, or unless the principal and the customer reach a definitive oral or written agreement.” See also Restatement, Agency, 2d § 445, comment d. In this case thq plaintiff finds itself in this dilemma: If the terms of the sale were not finally fixed it had no binding contract; if they were, it never produced a purchaser willing and able to comply with those terms.

It matters not whether the defendant changed his mind about selling the property, as plaintiff contends, or whether the impasse resulted because the lending institution would furnish Akins and Talley the money with which to purchase the property only if its loan were secured by a first mortgage on the warehouse while defendant would sell only if he could obtain a first mortgage on the same property securing the balance due .him on the purchase price. In either situation, under the evidence in this case, the defendant was entitled to his motion for nonsuit. Reversed.