Johnson v. Mutual Benefit Life Insurance

Supreme Court of North Carolina

Johnson v. Mutual Benefit Life Insurance

221 N.C. 441

DecidedJune 5, 1942

StatusPublished

This text of 221 N.C. 441 (Johnson v. Mutual Benefit Life Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Mutual Benefit Life Insurance, 221 N.C. 441 (N.C. 1942).

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Opinion

Seawell, J.

Under the view taken by the court as to the principle sustaining the judgment of nonsuit, plaintiff’s exception to the exclusion of evidence tending to show there was a bona fide commitment on the part of Bennett as purchaser of the property becomes immaterial. It is considered that it was the duty of plaintiff to make a full disclosure to the defendant in response to its request for the name of the purchaser; [445]*445Trust Co. v. Adams, 145 N. C., 161, 58 S. E., 1008—that it was required that he should produce a purchaser willing, ready and able to take and pay for the property. Crowell v. Parker, 171 N. C., 392, 88 S. E., 497; Gerding v. Haskings, 141 N. Y., 514, 36 N. E., 60; McGavock v. Woodlief, 20 Howard (U. S.), 221, 15 L. Ed., 884; Kaercher v. Schee, 189 Minn., 272, 249 N. W., 180, 88 A. L. R., 294; Am. Law Inst. Restatement, Agency, Vol. 2, pp. 1038-1041, sec. 445. Plaintiff’s counsel refers us, also, to Real Estate Co. v. Moser, 175 N. C., 255, 95 S. E., 498; Clark v. Lumber Co., 158 N. C., 139, 73 S. E., 793; Aycock v. Bogue, 182 N. C., 105, 108 S. E., 434; Ingle v. Green, 202 N. C., 122, 162 S. E., 476; Harris v. Trust Co., 205 N. C., 530, 172 S. E., 177; Veasey v. Carson (Mass.), 58 N. E., 171, and to 8 Am. Jur., 1038-1039. These authorities are not thought to be at variance with the conclusion reached by the Court on the crucial point of performance of the contract as here discussed.

When called upon to name or produce the purchaser, which, according to his advice to defendant should have been shortly after December 24, at which time his offer to the “prospect” would have been accepted, plaintiff telegraphed the names of three prospects, some of whom he admitted were not purchasers, and out of them did not distinguish the purchaser. Whatever his reasons, the Court is of opinion that his performance in this respect was less than his contract required, and justified the defendant in withdrawing its offer.

The judgment of the court below is

Affirmed.

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Seawell, J.

Under the view taken by the court as to the principle sustaining the judgment of nonsuit, plaintiff’s exception to the exclusion of evidence tending to show there was a bona fide commitment on the part of Bennett as purchaser of the property becomes immaterial. It is considered that it was the duty of plaintiff to make a full disclosure to the defendant in response to its request for the name of the purchaser; [445]*445Trust Co. v. Adams, 145 N. C., 161, 58 S. E., 1008—that it was required that he should produce a purchaser willing, ready and able to take and pay for the property. Crowell v. Parker, 171 N. C., 392, 88 S. E., 497; Gerding v. Haskings, 141 N. Y., 514, 36 N. E., 60; McGavock v. Woodlief, 20 Howard (U. S.), 221, 15 L. Ed., 884; Kaercher v. Schee, 189 Minn., 272, 249 N. W., 180, 88 A. L. R., 294; Am. Law Inst. Restatement, Agency, Vol. 2, pp. 1038-1041, sec. 445. Plaintiff’s counsel refers us, also, to Real Estate Co. v. Moser, 175 N. C., 255, 95 S. E., 498; Clark v. Lumber Co., 158 N. C., 139, 73 S. E., 793; Aycock v. Bogue, 182 N. C., 105, 108 S. E., 434; Ingle v. Green, 202 N. C., 122, 162 S. E., 476; Harris v. Trust Co., 205 N. C., 530, 172 S. E., 177; Veasey v. Carson (Mass.), 58 N. E., 171, and to 8 Am. Jur., 1038-1039. These authorities are not thought to be at variance with the conclusion reached by the Court on the crucial point of performance of the contract as here discussed.

When called upon to name or produce the purchaser, which, according to his advice to defendant should have been shortly after December 24, at which time his offer to the “prospect” would have been accepted, plaintiff telegraphed the names of three prospects, some of whom he admitted were not purchasers, and out of them did not distinguish the purchaser. Whatever his reasons, the Court is of opinion that his performance in this respect was less than his contract required, and justified the defendant in withdrawing its offer.

The judgment of the court below is

Affirmed.

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