90 N.C.App. 198, 368 S.E.2d 60CHAPEL HILL SPA HEALTH CLUB,
INC.
v.
Doris GOODMAN.
No. 875DC1074
Court of Appeals of North Carolina.
May 17, 1988.
BECTON, Judge.
In this action for breach of a retail
installment contract for the sale of a
health spa membership, the question
presented is whether the contract is void,
under N.C.Gen.Stat. Sec. 25A-37 (1986),
as an illegal referral sale.
I
On 9 February 1987, defendant Doris
Goodman entered into a contract to
purchase a two-year spa membership
from plaintiff, Chapel Hill Spa Health Club,
Inc. (the Spa), at a cash price of $750.00.
Goodman made a down payment of
$50.00 and agreed to pay the balance
pursuant to a "Consumer Credit Retail
Installment Contract" which required 24
monthly payments of $34.03. Mr. Dee
Best, the Spa's salesperson, also
separately executed and gave to
Goodman a written offer to renew her
membership after two years at a cost of
$120.00 for the third and each successive
year. In addition, during their discussions
prior to the execution of the contract, Best
orally promised Goodman that, for every
prospective customer she brought to the
Spa, she would receive a $20.00 discount
on the $120.00 cost of renewal.
Goodman referred several prospects to
the Spa and for each she received a
certificate entitling her to a $20.00
discount on the cost of renewing her
membership.
**61 Upon Goodman's failure to make
any of her monthly payments, the Spa
instituted this suit for the remaining
amount due under the contract. As a
defense, Goodman asserted that the
contract was void because it violated
N.C.Gen.Stat. Sec. 25A-37 which
prohibits referral sales. The matter was
first heard in magistrate's court, where the
Spa's suit was dismissed. Following a
trial de novo in district court, the trial judge
made findings, concluded that the
contract between the parties was not a
referral sale, and entered judgment
against Goodman for $734.92 with
interest. From that judgment, Goodman
appeals. We reverse.
*200 II
A
[1] Referral sales are prohibited in this
state by N.C.Gen.Stat. Sec. 25A-37 which
states:
The advertisement for sale or the actual
sale of any goods or services (whether
or not a consumer credit sale) at a price
or with a rebate or payment or other
consideration to the purchaser that is
contingent upon the procurement of
prospective customers provided by the
purchaser, or the procurement of sales
to persons suggested by the purchaser,
is declared to be unlawful. Any
obligation of a buyer arising under such
a sale shall be void and a nullity....
In essence, a referral sale is a
transaction in which a person is induced
to purchase goods or services upon the
representation that the purchaser can
reduce or recover the purchase price or
earn a commission by referring other
prospective buyers to the seller for similar
purchases. See, e.g., State ex rel Miller
v. American Professional Marketing, Inc.,
382 N.W.2d 117 (Iowa 1986); People v.
Best Line Products, Inc., 61 Cal.App.3d
879, 132 Cal.Rptr. 767 (1976) and cases
cited therein at 913, 132 Cal.Rptr. at 789.
For a detailed analysis of the operation of
and problems associated with referral
schemes, see Comment, Referral Sales
Contracts: To Alter or Abolish?, 15
Buffalo L.Rev. 669 (1965-1966).
A referral sales program "relies upon the
well-known fact that almost everyone
wants to get something for nothing."
Commonwealth ex rel Packel v. Tolleson,
14 Pa.Cmwlth. 72, 321 A.2d 664, 691
(1974), aff'd 462 Pa. 193, 340 A.2d 428
(1975). Referral sales plans, like pyramid
distribution schemes and similar "endless-chain" transactions, are widely recognized
as inherently fraudulent. Because there is
no infinite number of purchasers for any
particular product or service in any
vicinity, it is mathematically impossible for
most referral purchasers to qualify for the
promised discounts or commissions by
finding new referrals. See, American
Professional Marketing at 121; Tolleson
at 691; State by Lefkowitz v. ITM, Inc., 52
Misc.2d 39, 275 N.Y.S.2d 303, 315-316
(1966); Comment, 15 Buffalo L.Rev. at
684-85.
*201 The law of diminishing returns
operates against later participants in the
plan as the particular market becomes
saturated and no prospects remain for
them to solicit as customers. Referral
schemes have been invalidated by
numerous state statutes and court
decisions. See, e.g., Ohio Rev.Code
Ann., Sec. 1345.02(D) (Anderson 1979);
Minn.Stat.Ann. Sec. 325 F.69(2) (West
Cumm.Supp.1988); Mass.Gen.Laws Ann.
ch. 271 Sec. 6A (West 1970); Iowa Code
Ann. Sec. 714.16(2)(b) (West 1979); and
cases discussed in Annotation,
Enforceability of Transactions Entered
into Pursuant to Referral Sales
Arrangement, 14 A.L.R.3d 1420 (1967).
In recognition of the vast potential for
deception and exploitation of the public
inherent in referral sales and in
furtherance of the vital state interest in
protecting citizens from fraud, our
legislature, by enacting Sec. 25A-37, has
condemned all referral sales contracts,
declaring them both unlawful and
unenforceable. Careful consideration of
the record in this case convinces us that
the referral program utilized by the Spa in
its promotion and sale of a membership to
Goodman violates the terms and the
underlying policy of the statute and that
the resulting contract is therefore void. In
so concluding, we reject arguments by the
Spa that its transaction with Goodman
does not fall within the purview of Sec.
25A-37 **62 because (1) neither the
written offer to renew nor the oral referral
agreement are part of the initial two-year
membership contract which the Spa
seeks to enforce, and (2) neither the price
nor anything related to the two-year
contract is contingent upon Goodman's
procurement of prospective customers for
the Spa.
B
We first address the Spa's assertion that
the referral agreement and option to
renew are separate from the membership
contact.
The key to assessing the validity of this
type of contractual arrangement, in our
view, is not the number of documents
involved but whether the sale contract and
the referral contract are parts of a single
transaction in which the latter serves as
an inducement to the former. It is true
that, when not prohibited by law,
separation of the sale contract from the
referral agreement is a commonplace
feature of referral sales arrangements
which may sometimes legally operate
against a buyer if the enforcement *202 of
the installment sale agreement is sought
by a holder in due course with no
knowledge of the contract's illegal
inducement. See generally, Comment, 15
Buff. L.Rev. at 673-80; Annotation, 14
A.L.R.3d 1420. However, this is not such
a case. We are not persuaded that the
initial seller, who has full knowledge of all
facts relating to the transaction, may avoid
the consequences of the law simply by
studiously avoiding any reference to the
referral agreement within the sale
contract.
[2][3] The Spa apparently seeks to invoke
the parol evidence rule by arguing that,
because the membership contract
contains an integration clause stating that
no oral promises, warranties, or
representations were made other than
those in the contract, the court may not
look beyond the four corners of that
contract to assess its validity. However,
each party, without objection by the other,
offered testimony at trial establishing the
existence and terms of both the offer to
renew and the oral referral agreement.
This evidence, though inadmissible to
contradict or vary the terms of the written
membership agreement, is competent to
show the existence of facts which would
render the writing inoperative or
unenforceable, i.e., that it was fraudulently
or illegally procured. See Fox v. Southern
Appliances, Inc., 264 N.C. 267, 141
S.E.2d 522 (1965); Deaton v. Coble, 245
N.C. 190, 95 S.E.2d 569 (1956); Parker v.
Bennett, 32 N.C.App. 46, 231 S.E.2d 10,
disc. rev. denied, 292 N.C. 266, 233
S.E.2d 393 (1977).
Further, despite the Spa's careful efforts
to separate the membership contract from
all other promises made to Goodman, the
record belies any assertion that they are
truly distinct or unrelated. A general rule
of contracts is that all contemporaneously
executed instruments relating to the
subject matter of the contract are to be
construed together in order to determine
what was undertaken and to effectuate
the intention of the parties. E.g. Yates v.
Brown, 275 N.C. 634, 640, 170 S.E.2d
477, 482 (1969); Matter of Sutton
Investments, Inc., 46 N.C.App. 654, 659,
266 S.E.2d 686, 689, disc. rev. denied
and appeal dismissed, 301 N.C. 90
(1980). In this case, the offer to renew
was executed by Best simultaneously with
the execution of the membership contract,
expressly referred by number to the
contract, and was delivered to Goodman
with the contract as part of a single
transaction, all of which indicate it was
intended to be an integral part of the
contract. In addition, Best testified that
the offer to renew was *203 "guaranteed"
and would not be rescinded. Because an
offer may be revoked at any time before it
is accepted, in the absence of
consideration for the promise to keep it
open, see Normile v. Miller, 313 N.C. 98,
105, 326 S.E.2d 11, 16 (1985), this offer,
if irrevocable as represented, must
necessarily have been included in the
membership privileges acquired by
Goodman in exchange for the purchase
price. Indeed, Best also testified that,
when he brought the membership contract
in for Goodman to sign, he explained "all
the other benefits of membership at the
same time, including her opportunity or
offer to renew at the rate of $120.00 for a
third year." (emphasis supplied)
**63 Most significantly, the evidence
shows and the trial judge found that the
referral plan for discounting the renewal
price was also explained to Goodman
during the same discussion and that the
low-priced option to renew, coupled with
the possibility of obtaining a discount for
making referrals, was, in fact, a basis for
her decision to join the Spa. All of these
factors lead us to conclude that the oral
referral agreement, the option to renew,
and the initial two-year membership
contract are all parts of an integrated
transaction in which the referral plan
served as an inducement to purchase the
initial spa membership.
C
[4] We also reject the Spa's argument
that its contract with Goodman is outside
the scope of Section 25A-37 because
neither the price of the membership nor
the right to exercise the renewal option
are contingent upon the procurement of
membership prospects. The fact that the
contingency relates to the price of renewal
rather than the original membership is of
little significance, since, in either
circumstance, the promise of something
for nothing serves as the incentive to
make a purchase. The Spa represented
to Goodman, in effect, that if she
purchased the initial membership, she
could then obtain an additional year or
years of membership free by referring an
adequate number of prospects to the Spa.
This transaction clearly constitutes a "sale
of ... services ... with other consideration
to the purchaser that is contingent upon
the procurement of perspective customers
provided by the purchaser."
For the foregoing reasons, we hold that
the contract between Goodman and the
Spa constitutes a referral sale, in violation
of *204 N.C.Gen.Stat. Sec. 25A-37, and is
void and unenforceable. Accordingly, the
judgment of the trial court in favor of the
Spa is
Reversed.
ORR and GREENE, JJ., concur.
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