JOEL T. CHEATHAM, INC.
v.
Thomas M. HALL.
No. 829SC1253.
Court of Appeals of North Carolina.
November 1, 1983.*458 Zollicoffer & Zollicoffer by Nicholas Long, Jr., Henderson, for plaintiff-appellee.
Allsbrook, Benton, Knott, Cranford & Whitaker by L. McNeil Chestnut, Roanoke Rapids, for defendant-appellant.
HILL, Judge.
The sole issue is whether the trial court erred in granting plaintiff's motion for summary judgment. We find that summary judgment was properly granted.
Upon motion a summary judgment must be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." G.S. 1A-1, Rule 56(c). The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact. His papers are meticulously scrutinized and all inferences are resolved against him. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). In ruling on a motion for summary judgment, the court should not decide issues of fact. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980). "However, summary *459 judgments should be looked upon with favor where no genuine issue of material fact is presented." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971).
Applying these basic tenets to the case under review, we address defendant's contention that summary judgment was improperly granted. This contention is based on there being two material facts in issue: whether defendant properly reserved two prospective buyers from the terms of the second listing contract, and whether defendant is liable for payment of a broker's commission under an exclusive right to sell agreement where defendant sells property to a third party during the term of the agreement and the broker is not the procuring cause of the sale.
(1) Did defendant properly reserve two prospective buyers from the terms of the listing contract in question?
It is indisputed that the listing contract reserved the right to sell the property to two existing potential buyers for thirty days. However, this thirty-day period expired 20 February 1981, some three weeks prior to the date of defendant's contract to sell the property to Mr. Dannenberg. Nor do the copies of correspondence plaintiff received in which defendant attempted to extend the prior exclusive listing in regard to Mr. Dannenberg constitute a modification of the contract in question. To be effective as a modification, the subsequent agreement must possess all the elements necessary to form a contract. Tile and Marble Co. v. Construction Co., 16 N.C. App. 740, 193 S.E.2d 338 (1972); 17 Am. Jur.2d, Contracts, § 469, p. 939. The evidence is void of any mutual agreement or consideration to support a modification of the original contract. Therefore, as to defendant's first contention, there was no triable issue of fact.
(2) Did the construction of an exclusive right to sell agreement, under which defendant sells property to a third party and the broker is not the procuring cause of the sale, constitute a genuine issue of material fact?
Exclusive listing agreements are of two types: "exclusive agency," interpreted as prohibiting the owner from selling the property through the agency of another broker during the listing period, but the owner may sell the property through his own efforts; and an "exclusive right to sell," prohibiting the owner from selling both personally and through another broker, without incurring liability for a commission to the original broker. Beasley-Kelso Associates v. Tenney, 30 N.C.App. 708, 228 S.E.2d 620, disc. rev. denied, 291 N.C. 323, 230 S.E.2d 675 (1976); Insurance & Realty, Inc. v. Harmon, 20 N.C.App. 39, 200 S.E.2d 443 (1973); R. Lee, North Carolina Law of Agency and Partnership, § 38, p. 54 (3d ed. 1967).
In Insurance & Realty, Inc. v. Harmon, supra, this court considered the same wording of the form contract in question used by the plaintiff. The court concluded that the wording, "[i]f the property is sold or exchanged by you, by me, or by any other party ...," granted an "exclusive right to sell." In accordance with cases of other jurisdictions, in the event the owner breaches this type of agreement, he is liable for the commission which would have accrued if the broker had obtained a purchaser during the period of the listing. The broker need not show that he could have performed by tendering an acceptable buyer, or that he was the procuring cause of the sale. The owner may breach the agreement by arranging a sale in violation of the agreement or by action which renders the broker's performance impossible. See Carlsen v. Zane, 261 Cal.App.2d 399, 67 Cal. Rptr. 747 (1968); see also Annot., 88 A.L. R.2d 936 (1963) for more cases so holding.
In the case under review, the sale of the property clearly fell within the term of plaintiff's 21 January 1981 exclusive right to sell agreement. Therefore, the trial judge correctly determined as a matter of law that
the Exclusive Listing Agreement between Plaintiff and Defendant conveyed to Plaintiff the exclusive right to sell the 291-acre farm in Washington County, *460 North Carolina for a period from January 21, 1981 until May 22, 1981 and specifically negatived the right of the owner/defendant to sell the property either in competition with the broker/plaintiff or through another broker during the term of the Contract without being liable for payment of the commission to the Plaintiff as provided in the Contract....
We conclude that plaintiff was entitled to judgment as a matter of law. The summary judgment appealed from is
Affirmed.
ARNOLD and BRASWELL, JJ., concur.