OPINION
Appellant The David Gavin Company challenges the trial court’s grant of summary judgment to appellee Patrick J. Gib *834 son in Gavin’s claim for a commission as the cоnsultant hired to help Gibson locate and acquire an automobile dealership and its associated real estate. Gibson contended that (1) the Real Estate License Act, Tex Rev.Civ.Stat.Ann. art. 6573a (Vernon Supp. 1989), bars Gavin’s claim because Gavin did not allege and prove that it was duly licensed to perform brokеrage services involving real estate and (2) Gavin’s failure to give Gibson statutorily required caveats under the Act precludes recovery of a commission. Thе trial court found that no genuine issue existed as to any material fact and that Gibson was entitled to judgment as a matter of law. Gavin appeals the summary judgment, аsserting that a real estate license is not required in the sale of an ongoing business that includes realty and, regardless of whether the Act precludes recovery of a real estate commission, Gavin is entitled to a commission based on the value of the non-realty assets included in the sale contract. We affirm.
The David Gavin Company contracted with Patrick J. Gibson to help Gibson locate and acquire an automobile dealership. Gavin was similarly employed by Star Toyota, Inc., A. Louis Servos and James T. Papadakis to locate a buyer for Star. Subsequently, Star introduced Gibson to Servos and Papadakis and helped negotiate a transaction by which Gibson would purchase the Star automobile dealership. However, the transaction was never closed.
Gavin brought suit agаinst Gibson, Papa-dakis, Servos and Star for a commission from the aborted sale. The trial court granted Gibson’s motion for summary judgment; Gavin’s ease against Gibson was severed; and Gavin perfected its appeal to this Court.
The Supreme Court has ruled that the fee for handling the sale of property consisting in part of reаl estate is considered a real estate commission.
Hall v. Hard,
a person whо, for another person and for a fee, commission, or other valuable consideration, or with the intention or in the expectation or on the promise of receiving or collecting a fee, commission, or other valuable consideration from another person:
Sfc ⅜{ s¡c * * #
(H) aids, attempts, or offers to aid in locating or obtaining for purchase, rent, or lease any real estate;
(I) procures or assists in the procuring of prospects for the purpose of effecting the sale, exchange, lease, or rental of real estate; or
(J) procures or assists in the procuring of properties for the purpose of effecting the sale, exchange, lease, or rental of real estate.
Section 4 of that act further provides that a person hired to perform or attempt to perform even a single act defined in Section 2 of the Act — even if it is only one aspect of a larger transaction — is deemed to be acting as a real estate broker within the meaning of the Act. In addition, Sec. 20 denies a broker the use of the courts of our State to recover a real estate commission without alleging and proving that he was duly licensed at the time the alleged services were commenced. Because Gavin was not a licensed real estate broker, it can only recover by showing that it was not employed to procure prospects or property for the purpose of effecting a transaction that involved any real estate.
Id.
Hall
established that whether the nature of an agreement contemplates the sale of real estate is a fact question which, if not submitted to the jury, would preclude summary judgment.
Id.
“Assertions of fact, not pled in the alternative, in the live pleadings of a party are regarded as formal judicial admissions.”
Houston First American Sav. v. Musick,
Gavin’s judicial admissions show that it was involved in — and expected to be compensated for — assisting in a transaction that contemplated real estate; therefore, thе Act applies to Gavin’s role as a broker. Gibson also alleges that as its broker, Gavin violated Section 20(c) of the Act by not advising Gibson, in writing, of certain statutory caveats as to legal counsel to examine title, or title insurance to cover, the real estate to be purchased from Star. Gavin offers no response to this claim.
A question remains, however, as to whether the contract is divisible so that a finder’s fee for Gavin’s help with the sale of the non-realty assets of the Toyota dealership is severable from the real estate commission that Gavin cannot recover because it violated the Act.
Wе agree with the Austin Court of Appeals’ reasoning in this regard that where part of the consideration is illegal because it violates a statute, the entire agreement is void if the contract is entire and indivisible.
McFarland v. Haby,
If any covenant, agreement, term or condition of this agreement or the application thereof to any person or сircumstance shall to any extent, be invalid or unenforceable, the remainder of this agreement, and the application of such covenant, agreement, term or condition to persons or circumstances other than those to which it is held invalid and unenforceable, shall not be affected thereby. In еach covenant, agreement, term and condition of this agreement shall be valid and enforced to the fullest extent permitted by law.
Parties are presumed to contract for themselves and a contract will not be construed as having been made for the benefit of a third party unless that clearly apрears to be the intent of the primary parties.
E.g., Merit Drilling Co. v. Honish,
Having concluded that the Consulting Agreement to locate an automobile dealership is indivisible and inseparable and that Gavin violated the Real Estate License Act by assisting in a transaction involving, in part, real estate while unlicensed as a real estate broker, we apply the rule that if the consideration, or any part thereof, be unlawful, the entire contract is void and unenforceable.
We affirm the summary judgment.
J. CURTISS BROWN, C.J., concurs with the result only.