#### F. B. AYCOCK v. ELLA W. BOGUE, Executrix, Etc.

(Filed 5 October, 1921.)

Principal and Agent — Contracts—Procurement of Purchaser — Evidence-;— Nonsuit — Appeal and Error.

Where there is evidence that the agent, upon commission, has procured a purchaser for lands upon the terms of payment and within a specified time, and there is evidence that the purchaser refused the deed the day after, upon the ground that the period of his obligation to do so had expired, and there is further evidence that the delay was in accordance with a mutual agreement of the parties to the contract of agency, and acquiesced in by them: Held,, a prima facie case was established by the agent, in his action against the owner for his profits, and a judgment as of nonsuit upon the evidence was erroneously granted.

Appeal by defendant from Lyon, J., at May Term, 1921, of Wayne.

Civil action to recover broker’s commissions alleged to be due under a -contract of agency, said agreement being in words and figures as follows, to wit *

AUTHORIZATION TO SELL LAND.

'North Oaeolina — Wayne County.

In consideration of the sum of one dollar and other valuable considerations, to A. G. Bogue, the undersigned, paid by F. B. Aycock, the receipt of which is' hereby acknowledged, I hereby authorize F. B. Aycock, of Fremont, N. 0., to sell, or contract to sell, to any person for me on or before 1 December, 1919, at the price of $30,000, upon the following terms: $10,000 cash; $2,000 1 January, 1921; $2,000 1 January, 1922; $2,000 1 January, 1923; $2,000 1 January, 1924; $12,000 *1061 January, 1925. Secured by mortgage on land, and interest annually at 6 per cent, the lot or tract of land belonging to A. Gr. Bogue situated and described as follows: Adjoining the lands of E. L. Pippin, Simon Aycock and others, containing 100 acres, more or less, and being land bought of Kennedy-Moye Realty Company, and known as Wyatt M. Barnes land.

It is agreed that A. Gr. Bogue may rent out all crops for the year 1920.

I agree and bind myself to pay said E. B. Aycock all over the price above mentioned, if he makes said sale, or contract of sale, for me on or before the time above specified.

And I do hereby bind myself that I will make a good and indefeasible title in fee, free from áll incumbrances, by warranty deed, to any person or persons whom the said F. B. Aycock may sell said land to^ on or before the date above specified.

This 2 October, 1919.

(Signed) A. Gr. Bogue, [seal.]

On the afternoon of 1 December, 1919/ the plaintiff produced one W. R. Ballance, who was ready, able, and willing to buy in accordance with the terms of the above agreement and in keeping with his written contract to purchase. It appears that the signing of the deed by Bogue and his wife, by common consent and mutual acquiescence, was delayed until the next morning, 2 December, as it was desirable not to disturb Mrs. Bogue and her baby that night.

On the following day, and thereafter, Ballance declined to accept the deed on the ground that under his contract of purchase he was not bound to take .the property unless the deal was consummated on or before 1 December. His written agreement is as follows:

AGREEMENT TO PURCHASE LAND.

North Carolina — Wayne County.

In consideration of one dollar ($1) and other valuable considerations to me in hand paid by E. B. Aycock, the receipt of which is hereby acknowledged, I do hereby agree and bind myself, my heirs and assigns, to purchase from the said E. B. Aycock, at the price of $31,500, upon the terms of $11,500 cash; $2,000 1 January, 1921; $2,000 1 January, 1922; $2,000 1 January, 1923; $2,000 1 January, 1924; $12,000 1 January, 1925, on or before 1 December, 1919, the following described land adjoining the lands of E. L. Pippin, Simon Aycock and others, containing 100 acres, more or less, and being land purchased from Gr. A. Nor-wood and Kennedy-Moye Realty Company, and known as Wyatt Barnes land, owned by A. Gr. Bogue, and under contract to be sold by E. B. Aycock.

*107Said land to be conveyed to me in fee, free from incumbrances when said sale is made.

"Witness my band and seal, tbis 21 November, 1919.

(Signed) "W. E. BallaNCe. [seal.]

"Witness: J. H. Best.

At tbe close of plaintiff’s evidence and upon motion of counsel for defendant, bis Honor entered judgment as of nonsuit. Plaintiff appealed.

Dickinson & Freeman and F. M. Land for plaintiff.

Langston, Allen & Taylor for defendant.

Stacy, J.

There is evidence on tbe record tending to sbow tbat tbe plaintiff produced a purchaser, or a contract of sale, in accordance with bis agreement, which prima facie entitles him to bis commissions. Therefore, tbe judgment of nonsuit was erroneous.

As to whether there has been any release or abandonment of tbe contract, so participated in by tbe plaintiff as to bar bis right of recovery, can only be determined by a jury upon a full bearing and under proper instructions from tbe court. In tbe absence of all tbe evidence we refrain from discussing tbe case, as it goes back for a new trial; and, in alb probability, if Ballance is required to live up to bis contract of purchase, which apparently is enforceable, tbe plaintiff will have no further cause for complaint.

Eeversed.