#### J. F. FAISON et al. v. S. T. MARSHBURN.

(Filed 12 October, 1921.)

Vendor and Purchaser— Sales— Principal and Agent— Commissions— Parties — Pleadings—Demurrer—Evidence—Nonsuit—Trials.

An agent for the sale of land upon commission had the land platted into lots and sold to the highest bidders at public outcry, and brings his action against the highest bidder on two of these lots, to recover his commissions, who refused to take the lots in accordance with the terms of sale and a memorandum made at the time. Upon the allegations of the complaint: Held, on demurrer, a good cause of action had not been stated, no sale having been consummated, and there being evidence on the trial that the owner himself was not insisting on bidder taking the lots, a judgment as of nonsuit was properly rendered.

Appeal by plaintiff from Bond, J., at March Term, 1921, of DupliN.

Civil action to recover broker’s commissions upon an alleged sale of real estate. The complaint is as follows:

“The plaintiffs, complaining of the defendant, come and allege:

“1. That heretofore, prior to 29 October, 1919, the plaintiffs caused-a certain tract of land belonging to the plaintiff, J. F. Faison, and lying in "Warsaw Township, Duplin County, North Carolina, to be surveyed and platted into various lots and parcels of land; and thereafter, on 29 October, 1919, after due advertisement, said lands were offered for sale, on the premises, to the highest bidder, upon the terms of one-fourth cash, and the balance to be paid in one, two and three years from date, said deferred payments to be represented by purchase money notes, and secured by mortgage deed upon the lands so purchased.

“That a plat of said lands is hereto attached, marked Exhibit ‘A’ and made a part of this article.

“2. That on the date aforesaid, to wit, 29 October, 1919, said lands were duly sold upon the premises, at which time and place the defendant, S. T. Marshburn, purchased lot No. 1, and lot No. 2, according to said plat, containing 41.33 and 41.73 acres, respectively, at an agreed price of $142.50 per acre.

“3. That at the time of said sale it was publicly announced by the auctioneer that the terms of sale were as heretofore alleged, and that said sale was made according to the plat hereto attached and above referred to.

“4. That at the time of said purchase the defendant executed a written contract in words and figures as follows:

“This is. to certify that I have this day bought through the Fort Realty Company, of Raleigh, N. C., lot No. 1 and No. 2, 83.06a, as *134shown by the map of J. F. Faison, at $142.50, for which I promise to pay for on the terms announced at sale.

“Witness my hand and seal this 29 October, 1919.

“(Signed) S. T. MabshbukN. [seal.]

“5. That the plaintiffs have offered to execute and deliver to the defendant a good and sufficient deed for said lots, and have demanded of him the payment of one-fourth part of the purchase price, and requested him to execute and deliver to them his promissory notes, secured by a mortgage deed, in accordance with his said contract; and the defendant has failed and refused, and still fails and refuses to pay to the plaintiffs any part of said money, except the sum of $50, which was paid on the day of sale.

“6. That the total purchase price of said lands, as agreed upon, amounted to $11,836.05, of which sum $50 has been paid.

“7. That under the terms of agreement, between the plaintiff, J. F. Faison, and the plaintiff, J. J. Matthis, the said J". F. Faison was to receive one hundred and twenty-five dollars ($125) per acre from said sale, and the balance was to belong to the plaintiff, J. J. Matthis; that after deducting the $50 hereinbefore referred to, the balance due and owing to the plaintiff, J. J. Matthis, on account of said contract, is $1,403.05, which amount is now justly due and owing to him by the defendant.

“Wherefore the plaintiff, J. J. Mathis, demands judgment against the defendant for the sum of $1,403.05, together with the costs of this action to be taxed by the clerk.”

J. F. Faison, the owner of the land, testified as follows: “I have never signed a deed because I never got the cash payment. I have never tendered the defendant Marshburn a deed to the lands in controversy. I am not bringing any suit against the defendant Marshburn nor asking for any relief against the defendant, and the option that I gave Matthis is now out. I think Matthis made a profit on the other land sold that day.” At the close of plaintiff’s .evidence and upon motion of counsel for defendant his Honor entered judgment as of nonsuit. Plaintiff, J. J. Matthis, excepted and appealed.

Faison & Robinson, Grady & Graham, Fowler & Grumpier, and Stevens, Beasley & Stevens for'plaintiffs. ■

H. B. Williams, B. L. Carlton, and B. B. Johnson for defendant.

Stacy, J.

We fully concur with his Honor below that, upon the evidence J. J. Matthis is not entitled to recover of the defendant Marsh-burn, and further, that the complaint fails to allege facts sufficient to constitute a valid cause of action.

*135It will be observed tbat J. F. Faison, tbe owner of tbe land,-is not insisting or demanding tbat tbe defendant comply witb bis bid. No deed bas been tendered, and be expressly states tbat be is not asking for any relief in tbis action. Tbe broker is seeking to recover bis commissions out of tbe prospective purchaser without any sale having been consummated. His agreement was witb Faison, tbe owner .of tbe land, not witb tbe defendant. Tbe case in many respects is not unlike Aycoch v. Bogue, ante, 105, except there tbe broker sued tbe owner and here be bas brought suit against tbe bidder, who never became a purchaser.

Upon tbe record, and as now presented, we are of opinion tbat the judgment of nonsuit must be sustained.

Affirmed.