In the case of Aiken v. Collins, 16 N. C. App. 504, recently decided by the North Carolina Court of Appeals, the plaintiff, a licensed real estate broker, was denied recovery in his suit to collect a $2400 real estate commission.

According to the findings of fact, in May 1969 the defendant Collins listed property for sale with the plaintiff for $25000 of which $3000 was to be payable in cash and the balance by purchase money note in monthly installments secured by a deed of trust.

As compensation for the making of such a sale, the plaintiff was to receive all amounts for which he might sell the property in excess of $25000. Plaintiff never secured a purchaser on the listed terms. In November 1969, plaintiff tendered to defendant an offer from Ford and wife for $24000, of which $3000 was to be paid in cash and the balance in monthly installments of $100 each and accompanied by a letter advising the defendant, Collins, that plaintiff would charge a commission of 10% of the total sales price to be deducted from the down-payment. Defendant did not accept this offer. In August 1970, defendant sold the property to Ford and wife for $24000, of which $3000 was paid in cash and the balance by purchase money note payable in monthly installments of $125. The trial court adjudged that plaintiff was entitled to recover nothing from defendant and plaintiff appealed to the Court of Appeals which affirmed the lower court.

In its opinion, the Court stated: "It is established law in this jurisdiction that a real estate broker is not entitled to commissions or compensation unless he has found a prospect, ready, able and willing to purchase in accordance with conditions imposed in the broker's contract. . . . Therefore, for a broker to recover he must establish (1) a binding contract and (2) performance on his part."

"It is true, of course, that as a general proposition if property is placed in the hands of a broker for sale at a certain price, and a sale is brought about through the broker as a procuring cause, he is entitled to commissions on the sale even though the final negotiations are conducted through the owner, who, in order to make a sale, accepts a price less than that stipulated by the broker. . . .This is so because the law does not permit an 'owner to reap the benefits of the broker's labor without just reward' if he has requested a broker to undertake the sale of his property and accepts the result of services rendered at his request. In such case, in the absence of a stipulation as to compensation, he is liable for the reasonable value of those services."

"In the present case, however, the trial court found that there was an express understanding as to the plaintiff's compensation under which he was to receive compensation only for amounts for which he might sell the property in excess of the sum of $25000. This brings the present case within the exception to the general rule. . . to the effect that 'when the contract between the broker and his principal expressly makes the payment of commissions dependent on the obtaining of a certain price for the property the broker cannot recover, even though the owner sells at a lower price to a person to whom the broker has first shown the property, unless the broker is prevented from making the sale by the fault of the principal'. . . . There was no evidence in the present case even tending to show that plaintiff was ever able to produce a purchaser who was ready, able and willing to purchase the defendant's land in accordance with the conditions imposed in the contract under which the land was listed with the plaintiff, nor was there any evidence tending to show that plaintiff was in any way prevented from making such a sale by any default of the defendants."