{ "id": 8523100, "name": "MARY REIDY, d/b/a MARY REIDY REALTY COMPANY v. JOHN RICHARD MACAULEY and wife, LINDALEE MACAULEY", "name_abbreviation": "Reidy v. Macauley", "decision_date": "1982-05-04", "docket_number": "No. 8126SC862", "first_page": "184", "last_page": "188", "citations": [ { "type": "official", "cite": "57 N.C. App. 184" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "35 S.E. 2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611950 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0494-01" ] }, { "cite": "188 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574517 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0191-01" ] }, { "cite": "45 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "228 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625546 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/228/0240-01" ] }, { "cite": "248 S.E. 2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 406", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554366 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0406-01" ] }, { "cite": "277 S.E. 2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564686, 8564755, 8564723, 8564661, 8564798 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0218-02", "/nc/302/0218-04", "/nc/302/0218-03", "/nc/302/0218-01", "/nc/302/0218-05" ] }, { "cite": "272 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522317 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0488-01" ] }, { "cite": "277 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643722 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0602-01" ] }, { "cite": "209 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563200 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0001-01" ] }, { "cite": "177 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "278", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "277 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563328 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0119-01" ] } ], "analysis": { "cardinality": 429, "char_count": 7613, "ocr_confidence": 0.785, "pagerank": { "raw": 2.2269389344706595e-07, "percentile": 0.7783880450172964 }, "sha256": "41377bafc92baea61f3b4afb480c7828b967323d152bb22dfb9f7f9f9f0228c5", "simhash": "1:05d1d67e16eacf62", "word_count": 1197 }, "last_updated": "2023-07-14T20:31:38.946391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WELLS and Judge HILL concur." ], "parties": [ "MARY REIDY, d/b/a MARY REIDY REALTY COMPANY v. JOHN RICHARD MACAULEY and wife, LINDALEE MACAULEY" ], "opinions": [ { "text": "BECTON, Judge.\nPlaintiff states her sole argument thusly: \u201cThe Court erred by granting the defendant\u2019s [sic] motion for directed verdict at the close of all the evidence on the grounds that there was ample record evidence of every element of the plaintiffs claims sufficient to take the case to the jury.\u201d Believing, first, that plaintiff is, at best, an incidental beneficiary under the Contract between the Meyers and defendants and, therefore, not entitled to maintain an action for breach of contract against the defendants; and, second, that the broker\u2019s commission provision inserted into the Contract is unsupported by consideration and, therefore, unenforceable against defendants, we reject plaintiffs argument.\nSince Vogel v. Supply Co. and Supply Co. v. Developers, Inc., 277 N.C. 119, 177 S.E. 2d 273 (1970), our courts have consistently held that one may not maintain an action for breach of contract unless the contract was entered into for his or her direct benefit. Matternes v. City of Winston-Salem, 286 N.C. 1, 209 S.E. 2d 481 (1974); Alva v. Cloninger, 51 N.C. App. 602, 277 S.E. 2d 535 (1981); Howell v. Fisher, 49 N.C. App. 488, 272 S.E. 2d 19 (1980), disc. rev. denied 302 N.C. 218, 277 S.E. 2d 69 (1981); Johnson v. Wall, 38 N.C. App. 406, 248 S.E. 2d 571 (1978). See also 30 A.L.R. 3d Annot. 1395 (1970). The Vogel Court expressly adopted the \u201cframework for analysis\u201d of third party beneficiary claims set forth in the American Law Institute\u2019s 1932 Restatement of Contracts, requiring the promisee to either confer a gift on the beneficiary (the beneficiary being designated a \u201cdonee-beneficiary\u201d) or act to satisfy a duty owed to the beneficiary (the beneficiary being designated a \u201ccreditor-beneficiary\u201d). Under the 1932 Restatement, other beneficiaries were deemed \u201cincidental-beneficiaries\u201d and were not allowed to maintain suits as third party beneficiaries. See Restatement of Contracts \u00a7 133 (1932).\nAlthough the 1979 Restatement eliminates the \u201cdonee\u201d and \u201ccreditor\u201d categories in favor of a new designation \u2014\u201cintended benficiaries\u201d \u2014 it nevertheless classifies all other beneficiaries as \u201cincidental beneficiaries.\u201d Restatement (2d) of Contracts, \u00a7 302 (1979). Thus, the 1932 Restatement test for determining third party beneficiaries remains the same under the 1979 Restatement. Moreover, the Vogel test for determining if one other than the contracting parties has legally enforceable rights has not been changed by our courts.\nPlaintiff relies on Chipley v. Morrell, 228 N.C. 240, 45 S.E. 2d 129 (1947), a case brought by a real estate broker to recover a commission allegedly lost because the defendant-purchaser failed to perform the real estate contract. Suggesting that the plaintiffs in Chipley were incidental beneficiaries, the Court held that they could maintain an action to recover their commissions from the defendant. Significantly, the Vogel Court, while noting the Chipley decision, stated \u201c[e]ven so, the law in this State as to direct third party beneficiaries is synonomous with the Restatement categories of donee and creditor beneficiaries.\u201d 277 N.C. at 127, 177 S.E. 2d at 278 (emphasis in original).\nWe believe Chipley has been overruled sub silentio by Vogel and its progeny. Applying the Vogel analytical framework to the case sub judice, plaintiff cannot qualify as an intended (donee or creditor) beneficiary. The contractual provision under which plaintiff claims a right of action against defendants states that \u201csellers agree to pay Mary Reidy Realty 6% commission.\u201d Thus the Meyers are the promissors and the plaintiff is the promisee. The Meyers\u2019 promise to pay the plaintiff\u2019s commission arose out of the pre-existing exclusive listing contract between plaintiff and the Meyers. The record does not suggest that the defendants intended to, or otherwise secured, a benefit from the Meyers to the plaintiff.\nSeparate and apart from our analysis under Vogel, we are convinced that plaintiff cannot enforce the broker\u2019s commission provision in sub-paragraph 5(b) of the Contract between the defendants and the Meyers because that provision is not supported by valid consideration.\nIt is axiomatic that a contract, to be enforceable, must be supported by consideration and that failure of consideration constitutes legal excuse for non-performance of the contract. Investment Properties v. Norburn, 281 N.C. 191, 188 S.E. 2d 342 (1972); Coleman v. Whisnant, 225 N.C. 494, 35 S.E. 2d 647 (1945). In this case, plaintiff\u2019s right to receive a commission from the Meyers was already established in her exclusive listing contract, to which the defendants were not a party. Plaintiff\u2019s unilateral insertion of sub-paragraph 5(b) into the Contract does not obligate defendants to pay plaintiff\u2019s commission since there was no consideration to support plaintiff\u2019s efforts unilaterally to impose this additional burden upon the defendants.\nFor the foregoing reasons, the decision of the trial court is\nAffirmed.\nJudge WELLS and Judge HILL concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Mraz & Michael, P.A., by Mark A. Michael for plaintiff appellant.", "Thigpen & Hines, P.A., by James L. Smith for defendant ap-pellee." ], "corrections": "", "head_matter": "MARY REIDY, d/b/a MARY REIDY REALTY COMPANY v. JOHN RICHARD MACAULEY and wife, LINDALEE MACAULEY\nNo. 8126SC862\n(Filed 4 May 1982)\n1. Contracts \u00a7 14.2\u2014 agreement to pay broker\u2019s fee \u2014 broker not third party beneficiary\nPlaintiff real estate broker was not an intended beneficiary of an agreement between the sellers and purchasers of a house requiring the purchasers to pay plaintiffs commission on the sale and thus was not entitled to maintain an action for breach of the contract as a third party beneficiary.\n2. Contracts \u00a7 4.2\u2014 provision not supported by consideration\nA provision in a contract for the purchase of a house requiring the purchasers to pay the real estate broker\u2019s fee, unilaterally inserted into the contract by the broker, was unsupported by consideration.\nAPPEAL by plaintiff from Gaines, Judge. Judgment entered 24 March 1981 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals on 2 April 1982.\nThis is an action to recover a real estate broker\u2019s commission. On 23 April 1979, plaintiff, Mary Reidy, a real estate broker, entered into an exclusive listing contract with Mr. and Mrs. Robert Meyers. Plaintiff agreed to list the Meyers\u2019 house for sale, and the Meyers agreed to pay plaintiff a 6\u00b0/o commission if plaintiff produced a purchaser. Plaintiff testified: \u201cAt the time we signed the listing contract, I did have reason to believe that Mr. and Mrs. Macauley [the defendants] would be interested in the house.\u201d Consequently, within two days, plaintiff prepared, and the defendant signed a form styled \u201cOffer to Purchase and Contract\u201d (Contract) for the purchase of the Meyers\u2019 house. The total purchase was $140,000, $1,000 to be paid down, $90,000 to be financed, and the $49,000 balance to be paid in cash at closing. Although plaintiffs exclusive listing contract with the Meyers provided for the payment of a 6% broker\u2019s commission to plaintiff, plaintiff inserted, in her own handwriting, a separate sub-paragraph 5(b) into the Contract between the Meyers and the defendants which provided that \u201csellers agree to pay [plaintiff] 6% commission.\u201d\nBecause the defendants were unable to sell their own house, they were unable to pay the $49,000 cash balance required at closing. Consequently, defendants did not purchase the Meyers\u2019 house.\nFollowing a jury trial, and at the close of all the evidence, the trial court directed a verdict for defendants and dismissed plaintiffs claim for a 6% broker\u2019s commission. Plaintiff appealed.\nMraz & Michael, P.A., by Mark A. Michael for plaintiff appellant.\nThigpen & Hines, P.A., by James L. Smith for defendant ap-pellee." }, "file_name": "0184-01", "first_page_order": 214, "last_page_order": 218 }