177 S.W.2d 748 | Ark. | 1944
This litigation originated in the Blytheville municipal court. Appellee sued appellant for a real estate commission in the amount of $100. He alleged, in his complaint, "that the defendant is indebted to said plaintiff in the sum of one hundred dollars ($100) for commission on real estate sale, which is now due and unpaid." Hatcher Doan was made garnishee and the usual allegations and interrogatories were attached. Appellant answered with a general denial. A trial in the municipal court resulted in a judgment for appellee in the amount of $100, and on appeal to the circuit court, a jury returned a verdict for appellee for a similar amount. From the judgment comes this appeal.
Appellant says: "There is only one question involved in this appeal: Did the lower court err in refusing to direct a verdict for the defendant below because of plaintiff's failure to observe 12477, Pope's Digest? Said section provides `no recovery may be had by any broker or salesman unless he is licensed . . . and unless such fact is stated in his complaint.'"
At the trial, appellee testified: "Q. You are engaged in real estate business here in Blytheville, Mr. Burns? A. Yes, sir. Q. Are you a licensed real estate dealer in the city of Blytheville and state of Arkansas? A. Yes, sir. Q. And were you in January and February of 1942? A. Since 1929." This testimony was not objected to by appellant and stands uncontradicted.
Section 1463 of Pope's Digest provides: "The court may, at any time, in furtherance of justice, . . . *812 amend any pleadings . . . by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading . . . to the facts proved."
In the instant case, while appellee did not specifically allege in his complaint that he was a licensed real estate dealer, he testified without objection that he was a licensed dealer at the time the sale in question was made and had been so licensed since 1929. As indicated, appellant offered no objection to this testimony. Had appellant made timely objection by demurrer to the complaint or otherwise, the complaint could have been amended at that time. Obviously, we think the situation presented is one covered by the above statutory provisions. The amendment did not change substantially the claim of appellee and the trial court properly treated the complaint as amended to conform to the proof.
In Bank of Malvern v. Burton,
Appellant cites Birnbach v. Kirspel,
In the instant case, however, as indicated, the undisputed proof is that appellee did possess a license.
Finding no error, the judgment is affirmed.