#### W. B. CATHEY v. W. C. SHOPE and Wife, INA WILSON SHOPE.

(Filed 14 October, 1953.)

1. Brokers § 12—

All the evidence in this case tended to show that the defendants listed their property for sale by plaintiff broker, signed an option and a contract to pay plaintiff upon consummation of the sale a stipulated commission, and that plaintiff procured a purchaser who bought the property in accordance with the option as later modified and extended. *Held:*The court was justified in giving a peremptory instruction in favor of plaintiff in his action to recover the agreed commissions.

2. Same—

In a broker’s action for commissions it is competent for the broker to introduce testimony as to his efforts to sell defendants’ land after it had been listed with him in corroboration of his testimony that defendants listed the land with him, and as tending to establish the relationship between the parties.

3. Same—

In a broker’s action to recover commissions it is competent for him to testify as to transactions with the defendants tending to show that he was acting as their agent in procuring a purchaser.

4. Same—

Where, in a broker’s action for commissions, there is no evidence to support the owners’ contention that the broker was acting in a dual capacity or that he was acting as agent for the optionee in procuring an option on defendants’ land, it is not error for the court to refuse to submit an issue in respect thereto.

5. Trial § 36—

Only such issues as are raised by the pleadings and supported by competent evidence should be submitted to the jury.

*3466. Brokers § 12: Contracts § 12—

Where the owners executed an agreement to pay a broker a commission for selling their property, testimony of a statement thereafter made by the broker at a meeting with the optionee and others to the effect that the broker was not getting anything out of the sale, *is held*incompetent in the broker’s action to recover his commissions, since the statements are insufficient to constitute a rescission or abrogation of the brokerage contract.

7. Trial § 14—

The statutory rule that where a party objects to the admission of evidence it shall be conclusively assumed that he duly excepted to its admission over his objection, does not obviate the necessity for an exception by the adverse party to the court’s ruling in those instances in which objection to the admission of the evidence is sustained. Chap. 150, Session Laws of 1949. (G.S. 1-206.)

8. Brokers § 12: Evidence § 39—

Testimony by the *feme*owner that the broker stated that no commission would be charged if the owners reduced their asking price for the land is incompetent when the evidence further shows that thereafter the owners executed an agreement to sell at the reduced price solely for the purpose of inducing a sale to a specified corporate prospect, since such testimony is at variance with the written agreement thereafter executed.

9. Vendor and Purchaser § 5a—

An agreement which merely extends the time for performance under a prior option cannot otherwise affect the terms of the contract to sell, and therefore interrogations relating to the terms of sale upon the *execution*of the extension of time are improper.

Appeal by defendants from *Phillips,*JApril Term, 1953, Bukcombe. No error.

Civil action to recover commissions due on sale of real property.

Defendants owned a dairy farm near Asheville, N. C., containing about 428 acres. In 1946 they listed this property with plaintiff, a real estate broker in Asheville.

In 1951 citizens of Asheville organized a corporation known as the Asheville Industrial Promotion Council (hereinafter referred to as the Council) to seek new industries for Asheville. In August 1951 the Oer-likon Tool & Arms Company (hereinafter referred to as Oerlikon) was quietly seeking a site for a large new plant which would require about 400 acres. In the course of its survey of possible sites, its agents viewed defendants’ farm. They then requested the Council to obtain an option on defendants’ property.

The Council ascertained that the Shope property was probably listed for sale with plaintiff. Its officers contacted plaintiff and inquired whether he had any property containing approximately 400 acres listed for sale. They did not then give him the name of the prospective pur*347chaser. Plaintiff informed tbem be bad tbe W. C. Sbope property containing about 428 acres listed. An agent of tbe Council went witb bim to view tbe property. Tbe next day, 25 August 1951, plaintiff went to tbe Sbope borne and told tbem be bad a prospective purchaser wbo might buy tbe land alone. Tbey executed an option and delivered it to plaintiff. At tbe same time, tbey delivered to plaintiff a letter addressed to bim and containing tbe following:

“We tbe undersigned agree to pay you a 5% commission on our farm up to $50,000. and 2%% above $50,000. or wben tbe sale is completed for $100,000, we will pay you $3750.00.”

It was decided Oerlikon would require additional acreage, and tbe Council obtained a number of other options on tracts of land adjacent to or near defendants’ property. Plaintiff assisted tbe Council in obtaining these options.

On 27 September 1951, defendants executed a supplemental contract in which tbey agreed to reduce tbe purchase price to $97,000 if tbe whole tract was purchased, or to $92,000, if 99 acres lying east of Bee Tree Road was excepted. Tbe option of 25 August was attached thereto and made a part thereof.

On 9 November 1951, defendants executed an agreement extending tbe option executed 25 August, as modified by tbe contract of 27 September, for an additional sixty days. Tbey were at tbe time paid an additional $500.

Thereafter tbe sale of tbe property was consummated and defendants were paid tbe sum of $97,000. Plaintiff demanded bis commission. Defendants declined to pay, contending plaintiff bad waived tbe same. Thereupon plaintiff instituted this action. At tbe trial, the court below submitted an issue of indebtedness and tbe jury answered tbe same “$3,675.00.” Tbe court entered judgment oil tbe verdict and defendants appealed.

Don *O. Young for plaintiff appellee.*

*Fisher & Fowler and Harold K. Bennett for defendant appellants.*

Barnhill, J.

Tbe court below gave a peremptory instruction in favor of tbe plaintiff. Exception thereto poses this question for decision: Does all tbe competent testimony in this cause, considered in tbe light most favorable to defendants, tend to show that defendants are indebted to plaintiff in tbe sum of $3,675 ? Tbe court below, by its instruction, answered in tbe affirmative. We agree.

Tbe defendants listed their property for sale witb plaintiff. He advertised tbe same and contacted prospective purchasers. Defendants from *348time to time went to bis office to inquire as to tbe prospects of sale. Finally, tbe Council got in touch with him because it was known, or tbe Council was informed, that be bad tbe property for sale. He reported to defendants be bad a prospective purchaser. After conferring with him as to price, personal property to be excluded, and other matters, tbey signed an informal option prepared by plaintiff, more favorable to them than their original listing. Thereafter, on tbe same day, tbey executed a formal option, prepared by tbe attorney of tbe Council, in which tbey agreed to sell to Francis J. Heazel or bis assigns tbe *locus in quo.*at tbe price of $100,000. At tbe same time tbey signed a contract to pay plaintiff, upon tbe consummation of tbe sale, tbe commissions be now claims. Tbe sale was consummated under tbe terms of tbe original option as modified by tbe contract of 27 September and tbe extension agreement of 9 November 1951.

There is only one inference that may be drawn from this evidence. Tbe plaintiff has fully performed bis part of tbe contract, and defendants must pay him for bis services tbe compensation tbey agreed to pay. This was tbe substance of tbe charge of tbe court below to which defendants except. It meets our approval. Hence this exceptive assignment of error is overruled.

Tbe evidence offered by plaintiff pertaining to bis effort to sell defendants’ farm after it was listed with him up to tbe time be was approached by tbe Council was admissible in corroboration of plaintiff’s testimony that defendants’ farm was listed with him for sale and for tbe purpose of showing tbe relationship that existed between him and defendants at tbe time tbey signed tbe option of 25 August 1951. He testified be approached them on 25 August as their agent to obtain an option that would in effect “book tbe fish” that was “nibbling at tbe bait.” The testimony to which defendants’ exceptive assignments of error are directed tends to show that be was then acting as agent of defendants. It follows that defendants’ exceptions thereto are without merit.

Tbe record is devoid of any evidence tending to show that plaintiff, in procuring an option and effecting a sale of tbe property of defendants, was acting in a dual capacity or that be was acting as agent of tbe op-tionee in procuring tbe option of 25 August. Therefore, tbe court committed no error in declining to submit tbe tendered issue or in its charge in respect thereto. *Satterwhite v. Hicks,*44 N.C. 105; *Brown’s Heirs v. Patton’s Heirs,*35 N.C. 446; *Lee v. Williams,*112 N.C. 510.

Only such issues as are raised by tbe pleadings and supported by Competent evidence should be submitted to a jury. *Morrisett v. Cotton Mills,*151 N.C. 31, 65 S.E. 514; *Braswell v. Johnston,*108 N.C. 150; *Griffin v. Insurance Co.,*225 N.C. 684, 36 S.E. 2d 225; *Stokes v. Edwards,*230 N.C. 306, 52 S.E. 2d 797.

*349Those who had signed options to sell their property, at the instance of the Council, held a meeting to consider reducing the prices they were demanding so as to bring the total within the amount Oerlikon was willing to pay. . Witnesses offered to testify that plaintiff at this meeting addressed the optionors and made the statement, “he wasn’t getting a dime out of it,” and other statements to like effect. This testimony was properly excluded. It does not appear just when this meeting was held. Certainly it was after the defendants executed the agreement to pay plaintiff a commission for making sale of their property, and the alleged statements were insufficient to constitute a rescission or abrogation of that contract. *Patton v. Lumber Co.,*179 N.C. 103; *May v. Getty,*140 N.C. 310; *Manufacturing Co. v. Lefkowitz,*204 N.C. 449, 168 S.E. 517; *Lewis v. Gay,*151 N.C. 168, 65 S.E. 907; *Adams v. Battle,*125 N.C. 152; *Palmer v. Lowder,*167 N.C. 331, 83 S.E. 464; *Bell v. Brown,*227 N.C. 319.

Defendants rely heavily on what they term their Exceptions 11 and 12, directed to the exclusion of testimony of the *feme*defendant. No such exceptions were entered of record. Even so, they contend that exceptions are implied under the terms of Ch. 150, S.L. 1949.

The *feme*defendant testified that plaintiff went to the home of defendants 27 September and told them the prospective purchaser would not buy from the various optionors unless the purchase price of the several tracts desired was reduced. They replied: . . we were a community citizen people and would be glad to help the community and that we would reduce ours $3,000, (and he told us there would be absolutely no commission when we did that . . .)” Plaintiff moved to strike the testimony in parentheses. The motion was allowed. Defendants contend that under Ch. 150, S.L. 1949, an exception by them to this ruling is implied.

Mrs. Shope was then asked whether she signed another agreement reducing the price $3,000 on 9 November. She answered: “I did, but I did because I was told a story; now that is exactly why; and the paper was never offered me to read.” Plaintiff moved to strike. “Motion allowed. That is not in response to the question.”

Here again the defendants contend an exception on their part to the ruling of the court is implied.

The contention of the defendants that in law they entered Exceptions II and 12, although at the time they remained silent, is without merit.

Ch. 150, S.L. 1949, is short and to the point. It provides:

> “Sec. 1. In any trial or hearing no exception need be taken to any ruling upon an objection to the admission of evidence. Such objection shall be deemed to imply an exception by the party against whom the ruling was made.”

*350It simply provides that when a litigant objects to the admission of evidence and bis objection is overruled, it shall be conclusively presumed that he duly excepted to the ruling. It makes no provision for the protection of the adversary party who sits by and fails to except when an objection to evidence is sustained. The Legislature wisely omitted any such provision, for a trial judge should be advised, at the time, that his ruling is challenged. The objection gives him notice on the one hand, hut silence on the other does not. Instead, it indicates the ruling is accepted as being in accord with rules governing the admission of testimony.

In any event, the ruling of the court was correct. *Feme*defendant testified that after plaintiff stated that no commissions would be charged if defendants reduced their asking price by $3,000, he went to town and returned to their home that night with a contract which she and her husband executed. This is the contract of 27 September reducing the price and in which the inducement or consideration for the reduction is specifically stated as follows :

> “Undersigned has been informed by said Francis J. Heazel that said option and options on other land in the same neighborhood have been obtained by him for the purpose of providing site for the construction and operation of a manufacturing plant and that said option given by the undersigned may not be exercised unless the said purchase price stated therein is reduced.

> “Therefore, as an inducement to said Francis J. Heazel, Attorney, and also to Asheville Industrial Promotion Council, Inc., to continue thereafter to sell the said land of the undersigned to a corporation that shall use said land as a part of a site for a manufacturing plant and in consideration of said Francis J. Heazel, Attorney, agreeing that said option granted to him shall not be exercised for the benefit of or assigned or transferred to anyone other than a corporation that shall so use said land, it is agreed by undersigned that the purchase price for the land described in the attached agreement is reduced to Ninety Seven Thousand ($97,000) Dollars . .

The testimony stricken was at variance with this provision of a written contract thereafter executed and was properly excluded. *Pierce v. Bierman,*202 N.C. 275.

The question involved in the purported Exception 12 was improper. It incorporated an erroneous conclusion of law. The contract of 9 November was not “an agreement reducing the price.” The price was reduced by the contract of 27 September. The contract of 9 November was merely an agreement extending the option of 25 August, as modified by the contract of 27 September, *an*additional sixty days.

In this connection we may note that the assumption the agreement of 9 November reduced the defendants’ asking price by $3,000 no doubt led *351to tbe efforts on tbe part of defendants to prove statements made by plaintiff prior to tbe execution thereof, which produced many of tbe exceptions contained in tbe record.

"We have examined tbe exceptive assignments of error not herein specifically noted, and we fail to find in them sufficient merit to require discussion.

In tbe trial below we find

No error.