#### W. S. HARRISON v. J. P. BROWN, Receiver of BLUE RIDGE BUILDING & LOAN ASSOCIATION.

(Filed 3 March, 1943.)

1. Trial § 54—

The trial judge, a jury trial having been waived, may find the facts with the force and effect of a jury verdict, and declare his conclusions of law arising thereon.- The statute, C. S., 569, requires that his findings and conclusions be stated in writing.

2. Trial §§ 24, 54—

Where a jury trial is waived and the court makes no specific findings of fact, all of the evidence, when taken in the light most favorable to plaintiff, must be insufficient to support a favorable finding for plaintiff to justify a judgment of nonsuit.

3. Corporations § 31—

A receiver is an administrative officer of the court and can exercise only the powers and authority conferred upon him by the court. He is controlled by its proper decrees and the property he administers is in custodia leges.

4. Same—

In dealing with others a receiver cannot evade the ordinary incidents of contractual and property rights on the ground that he is an agent of the court, and, within the limits of the authority expressly conferred, he may impose liability upon the estate he is appointed to administer.

5. Same—

While G. S., 1209 (4), empowers receivers to convey the estate, the receiver of a corporation may not ordinarily dispose of a substantial part of the assets entrusted to him without authority of court, and sales are subject to confirmation unless authority to convey on specified terms is expressly given.

6. Brokers and Factors § 11—

When a real estate broker procures a purchaser acceptable to the owner and a valid contract is drawn up between them, the broker’s commission for finding a purchaser is earned, although the purchaser later defaults or refuses to consummate the contract.

7. Same: Corporations §§ 31, 34—

Where the court authorizes a receiver to sell the property in his charge upon specified terms, through a certain real estate broker whose commissions are authorized and fixed by the court’s order, upon a valid offer, procured by such broker from a solvent party, payment of a substantial sum on the purchase price, and acceptance by the receiver, all in accordance with the court’s order, payment of the broker’s commission cannot be resisted either on the ground that the sale was not consummated, or because, in his acknowledgment of an assignment of the commission by *611the broker to plaintiff, the receiver inserted a clause “unless otherwise ordered by the court” and the court thereafter annulled the offer and acceptance.

Appeal by plaintiff from Sinlc, J., at December Term, 1942, of BuNcombe.

Beversed.

Tbis was an action by plaintiff as assignee of a real estate broker to recover for services in connection with tbe sale of certain real property by defendant, receiver, under orders of court.

Tbe defendant Brown is tbe duly appointed and acting receiver of tbe Blue Eidge Building & Loan Association, and as sucb is engaged in tbe liquidation of its assets, pursuant to tbe orders of tbe Superior Court. In tbe course of tbe receivership tbe following order was made by Presiding Judge Phillips, dated 29 January, 1942: “That with a view of early liquidation, tbe Court appoints J. T. Jordan, Jr., James A. Carroll and Guy Weaver as an Advisory Committee, and directs that tbe said Committee shall forthwith examine and go over tbe list of properties and revise tbe prices heretofore fixed by tbe appraisers, with a view of scaling tbe said prices down approximately 25 % on tbe whole, but with discretion to raise or lower any or all prices, in accordance with their best judgment with respect to each individual item, and that thereupon tbe said Committee shall appoint one real estate broker to have charge of, negotiate and sell off tbe properties in connection with tbe Eeceiver, tbe said broker to receive 5% commission on all properties directly sold by him, .and be is directed to list with all members of tbe real estate board said property at tbe revised prices so fixed, and any of said brokers making sales shall receive 3% of tbe commission and 2% to go to tbe broker having tbe property in charge. . . . Tbe Eeceiver is hereby authorized and directed to make sale and convey any and all properties sold at tbe prices fixed by tbe Advisory Committee, or at sucb price as may be by them approved, without further order of tbis Court.”

By authority of tbis order, J. A. Carroll, a real estate broker, was appointed to have charge of tbe sale of tbe real property of tbe Association in tbe bands of tbe receiver upon tbe terms specified, and in accordance with tbe court’s instructions listed with all members of tbe real estate board tbe property at tbe prices fixed by tbe Advisory Committee. Thereafter, on 11 February, 1942, Arthur A. York, a broker, transmitted to Carroll tbe offer of one 0. S. Badgett, in writing, to purchase tbe property in Asheville known as tbe Blue Eidge Building for tbe sum of $50,000 cash, tbe price fixed by tbe Advisory Committee, and, as evidence of good faith, to be applied on tbe purchase price, deposited $2,500. Tbe offer was reported to tbe receiver. Tbe receiver referred *612tbe offer to tbe Advisory Committee and was authorized and directed by tbe Committee to accept tbe offer and to sell tbe property for tbe price and on tbe terms set forth in tbe offer. Thereupon, on 12 February, 1942, tbe receiver in writing accepted tbe offer, and tbe $2,500 was turned over to him. It was admitted in tbe pleadings that O. S. Badgett bad authorized York to make tbe offer, and there was evidence that Badgett was worth $500,000, and owned real property in Asheville.

On 6 March, 1942, J. A. Carroll assigned to tbe plaintiff tbe $1,000 commission alleged to be due him in connection with tbe sale of tbe property referred to, and in writing authorized tbe receiver to pay this amount to tbe plaintiff. This assignment was accepted by tbe receiver, in writing, as follows :

“I, J. P. Brown, Receiver, hereby agree to carry out tbe assignment as outlined above of tbe commission due J. A. Carroll, tbe real estate broker appointed by tbe Advisory Committee to sell tbe properties of tbe Blue Ridge Building & Loan Association under authority of an order entered in tbe Superior Court of Buncombe County, N. C., and agree to pay to tbe assignee tbe amount stipulated above out of funds now in my bands, which funds represent tbe deposit made by tbe purchaser of tbe building hereinabove described, unless otherwise ordered by tbe court.

J. P. BbowN, Receiver.”

It further appeared from tbe pleadings offered in evidence by tbe plaintiff that tbe receiver prepared tbe papers necessary to convey title to C. S. Badgett, and tendered same and demanded payment of tbe balance of tbe purchase price, $47,500. Payment was refused. Thereafter, 30 March, 1942, Arthur A. York petitioned tbe court to be allowed to withdraw tbe offer to purchase and to recover tbe $2,500 previously paid. Tbe receiver filed answer to this petition and asked for specific performance of tbe contract of purchase and for tbe recovery of $47,500. Tbe matter was beard 14 May, 1942, by Judge Phillips, who entered tbe following order: “This cause coming on to be beard, and being beard before the undersigned presiding judge, upon tbe petition of Arthur York and upon tbe answer filed by tbe Blue Ridge Building & Loan Association, and upon tbe oral evidence and affidavits introduced by both parties, and being beard, and tbe receiver having announced in open court that be was not going to appeal from this order, and for that reason there is no necessity of finding facts, it is therefore ordered by tbe court that tbe offer heretofore be, and tbe same is hereby adjudged of no force and effect and tbe Receiver, J. P. Brown, with whom tbe $2,500 in controversy has been deposited is hereby ordered and directed *613to forthwith refund said money to the said Arthur York. This 14th day of May, 1942.”

From this order the receiver did not appeal. Neither the plaintiff nor Carroll, his assignor, was made party to this proceeding or had. notice thereof.

Plaintiff applied to the court for leave to bring an independent action against the receiver for the commission claimed, and this was allowed by order of court 5 September, 1942. Pleadings were filed and the case was heard at December Term, 1942, of Buncombe Superior Court, at which term it was agreed that jury trial be waived, and that the court should hear the same, find the facts and state his conclusions of law. However, the defendant’s motion for judgment of nonsuit made at the close of plaintiff’s evidence and renewed at the close of all the testimony was allowed, and plaintiff’s cause of action was nonsuited. The judgment recited: “It is therefore, ordered, adjudged and decreed that the plaintiff’s cause of action be and the same is hereby nonsuited, and the same is dismissed, and the plaintiff taxed with the costs thereof.” There were no findings of fact or conclusions of law stated.

The plaintiff appealed.

Don 0. Young for plaintiff, appellant.

Jordan & Horner for defendant, appellee.

Devin, J.

The plaintiff was permitted by order of court to institute an independent action against the receiver to determine the validity of his claim. McIntosh, p. 1011. A jury trial having been waived, the trial judge could have found the facts with the force and effect of a jury verdict, and declared his conclusions of law arising thereon. The statute requires that when issues of fact are tried by the judge the decisions shall contain a statement of the facts found and conclusions of law separately. C. S., 569; McIntosh, p. 553; Dailey v. Ins. Co., 208 N. C., 817, 182 S. E., 332. Here, however, the judge elected to dispose of the case by a judgment of nonsuit. This permitted the plaintiff to challenge the correctness of the judgment below if there was ally substantial evidence presented in support of his claim. As was said by Winborne, J., in Ins. Co. v. Carolina Beach, 216 N. C., 778 (789), 7 S. E. (2d), 13, where jury trial was waived and the court made no specific findings of fact, “. . . the effect of the written judgment is that when taken in the light most favorable to plaintiffs, all the evidence is insufficient to support a favorable finding for plaintiffs on any issue raised by the pleadings.” Hence the only question presented for our decision is whether the evidence in the view most favorable for the plaintiff was sufficient to withstand a motion for nonsuit.

*614A receiver is a ministerial officer of tbe court (S. v. Whitehurst, 212 N. C., 300, 193 S. E., 657), and can exercise only tbe power and authority conferred upon him by tbe court. He is controlled by its proper decrees, and tbe property be administers is said to be in custodia leges. But within tbe limits of tbe authority expressly conferred upon him, in dealing with others be may not evade tbe ordinary incidents of contractual and property rights on tbe ground that be is an administrative agent of tbe court, and by bis acts which be performs within tbe scope of tbe authority given, be may impose liability upon tbe estate be is appointed to administer. While tbe statute, C. S., 1209 (4), empowers the receiver to convey tbe estate, ordinarily, tbe receiver of a corporation may not be permitted to dispose of a substantial part of tbe assets with which be is entrusted without authorization from tbe court, and tbe sale is subject to confirmation, unless authority to convey on specified terms is expressly given beforehand. High on Receivers (3rd Ed.), see. 199 (c).

In tbe case at bar the order of court not only authorized tbe sale of tbe property in question, but prescribed tbe method by which tbe price should be determined and fixed tbe compensation of those employed in connection therewith. Tbe receiver was directed to sell and convey tbe property at tbe price approved by tbe Advisory Committee “without further order of court.” Tbe price of tbe Blue Ridge Building was accordingly fixed at $50,000. J. A. Carroll was appointed tbe real estate broker to have charge of tbe sales of this and other properties. Pursuant to this authority Carroll listed tbe property with tbe members of tbe real estate board upon tbe terms specifically mentioned in tbe order of court, that is, if another broker procured a purchaser at tbe price approved by tbe Advisory Committee, such broker would receive 3 % and Carroll 2% of tbe purchase price. Within a short time a broker procured a purchaser for tbe Blue Ridge Building at $50,000 cash. Tbe purchaser was well able to pay. He put up $2,500 as evidence of good faith and as part payment. Tbe offer in writing was addressed to Carroll and by him transmitted to tbe receiver. The offer was submitted to the Advisory Committee and approved. Tbe receiver conformable to instructions signed a formal acceptance of tbe offer as made.

Considering tbe evidence offered by the plaintiff in tbe light most favorable for him, as is the rule on a motion for nonsuit, in accord with tbe principle enunciated in Trust Co. v. Adams, 145 N. C., 161, 58 S. E., 1008, and House v. Abell, 182 N. C., 619, 109 S. E., 877, we are of opinion that plaintiff’s claim for commission earned should not have been dismissed by judgment of nonsuit. Tbe negotiations for tbe sale were under Carroll’s charge. As a result of bis activity a responsible purchaser was procured, and an apparently valid contract was executed on *615tbe prescribed terms. He bad performed all tbe things necessary to entitle him to tbe compensation specified in tbe order of court. His assignment to tbe plaintiff of tbe commission earned was agreed to by tbe receiver.

True, tbe sale was not consummated. Tbe record discloses no reason why this was not done. It appears that tbe purchaser declined to pay on tender of deed, and shortly thereafter filed petition to tbe court to be permitted to withdraw bis offer and recover tbe advanced payment. Over tbe objection of tbe receiver this was allowed by tbe court. No facts were found by tbe court. Doubtless tbe judge bad good reason for bis action, but none appears in tbe record on which tbe case comes to us for review.

Tbe receiver resists payment of tbe 2% commission to tbe plaintiff as assignee of Carroll, principally, on two grounds; first, that tbe sale was not consummated, through no fault of tbe receiver, and, second, because in bis acknowledgment of tbe assignment of Carroll’s rights to tbe plaintiff, tbe receiver added tbe clause “unless otherwise ordered by tbe court.” Neither of these positions can be sustained.

The plaintiff’s rights were not dependent upon tbe subsequent action of York, tbe other broker, as bis assignor’s compensation was independent of that accruing to tbe procuring broker, and was fixed by tbe terms of tbe order of court. Neither Carroll nor tbe plaintiff was a party to tbe proceeding wherein Judge Phillips adjudged tbe purchase offer of no force and effect, and ordered tbe return of tbe initial payment, and no reference was made in that order to tbe compensation of tbe broker. Tbe plaintiff cannot be held debarred by that order. Nor was Carroll’s right to compensation precluded by tbe failure of tbe purchaser to fulfill bis contract and complete tbe purchase. He was not tbe agent or employee of Badgett. He was employed under order of court by tbe receiver, with a definite compensation fixed for specified service. Under tbe evidénce appearing in tbe record bis compensation would be regarded as a necessary expense of tbe receivership. Mortgage Co. v. Winston-Salem, 216 N. C., 126, 6 S. E. (2d), 501.

Tbe general rule is stated in 8 Am. Jur., 1099, as follows: “It may be generally stated that when a real estate broker procures a purchaser who is accepted by tbe owner, and a valid contract is drawn up between them, tbe commission for finding such purchaser is earned, although tbe purchaser later defaults or refuses to consummate tbe contract.” This rule is equally applicable where no known reason for tbe default of tbe purchaser appears. 51 A. L. R., 1392. Tbe receiver consented to tbe assignment of Carroll’s commission to tbe plaintiff Harrison, and agreed “to pay to tbe assignee tbe amount stipulated above out of tbe funds now in my bands, which funds represent tbe deposit made by 'the pur-*616cbaser of the building hereinabove described, unless otherwise ordered by the court.” The last clause we think susceptible of the reasonable interpretation as having reference only to thé fund from which the receiver expected to pay it, and on a motion for nonsuit plaintiff is entitled to the aid of every reasonable inference from the facts in evidence. Certainly, if the compensation had already been earned in accordance with the court’s order, the receiver could not properly confine the payment to a particular fund. Nor would we be disposed to hold that the plaintiff’s case should fail because the judge subsequently held the purchase offer-ineffective and permitted the withdrawal of the fund mentioned. Judge Phillips’ last order did not refer to the matter of plaintiff’s compensation. Even if the words relied on by the defendant be understood to impose a condition on the right to the commission itself, as being dependent on the subsequent order of the court, we doubt the power of the court to decree avoidance of the obligation of a valid contract, after compensation thereunder had been earned. Defendant’s contention that the plaintiff was reimbursed by Carroll is not borne out by the evidence.

Considering the plaintiff’s evidence in the most favorable light for him, we are constrained to hold that the judgment of nonsuit was improvidently entered, and must be reversed and the cause remanded for further proceeding.

Reversed.