142 Me. 215 | Me. | 1946
In this action, tried before a jury, the plaintiff, Hyman Gerstian, has alleged that “on or about the fifteenth
At the conclusion of the evidence, offered by the plaintiff, the presiding justice ordered a nonsuit. The case is now before this Court on plaintiff’s exceptions to this order. The question for decision is whether the evidence offered, viewed most favorably to plaintiff’s claim, would warrant a recovery.
The plaintiff testified that his business was agent for the sale of real estate. That he was a licensed broker was admitted by counsel for defendant. In January 1946, he had in his hands, for sale, certain property, in Augusta, occupied by Joseph Kaplan and Julius Sussman and known as the Blouin Block, which he tried to sell to them, but was informed that they preferred the Tibbetts building next door, owned by the defendant James E. Tibbetts, Jr. As a result, Gerstian went to Tibbetts to learn if Tibbetts would sell, and learning that he would, he told Tibbetts that he “might put the deal through.” Tibbetts told Gerstian to “bring him in.” Sussman had seen the building but Kaplan had not, and the plaintiff took Kaplan in to see it. Kaplan and Sussman then made an offer of $27,500. Tibbett’s price however was $30,000, with the condition of a lease back permitting Tibbetts to continue to occupy, for a short period at a “certain price.” There was no testimony to the effect that Gerstian ever discussed with Kaplan or Suss-man the question of defendant’s demand for a lease, as part of the purchase.
Julius G. Sussman testified for the plaintiff that he and his brother-in-law, Kaplan, occupied the block next door to the Tibbetts property and that they wanted to buy from Tibbetts, if the Tibbetts block met with their requirements as to floor space. Otherwise they were not interested. He had several conversations with Gerstian “dickering back and forth on price and conditions.” “After Mr. Newbert came into the case” the measurements were made, and Kaplan and Sussman paid Newbert a deposit of $1,000. A deed was made through Newbert on March 23, 1946, with a lease back to Tibbetts for two years.
Joseph Kaplan, for the plaintiff, testified that he “dickered” with Gerstian “half a dozen times,” but that the first part of March, Mr. Newbert came to see him “and showed me he had the contract with Mr. Tibbetts that he had the property for sale and I could not do business with anybody else.” Kaplan did no business with anyone except Newbert after March 1, 1946. With Newbert, Kaplan went to look at the building and took measurements. The contract to purchase was made through Newbert on March 9, 1946. The sale of the property to Mrs. Kaplan and Mrs. Sussman, with the furnishings and an agreement to lease back for two years, was made on March 23, 1946. The lease back was a part of the agreement of purchase and sale.
In this case the defendant did not in words employ the plaintiff to sell for him his property. The plaintiff had the Blouin Block to sell. The prospective customers told him they were not interested in the Blouin property, but in the block next door belonging to the defendant. The plaintiff went to the defendant to ascertain if he would sell. There was evidence from which a jury might have inferred that prior to the first week in March, the plaintiff was engaged in an endeavor to effect a sale of defendant’s property, with knowledge on the part of the defendant. There was no evidence, however, that the prospective customers were ready or willing to agree to the defendant’s terms of $30,000 and a lease, until after the property was placed in the hands of Newbert and after the plaintiff had ceased to do any work in the matter. The customers were not interested in paying
There is another reason why the order of nonsuit in this case was a proper one, although the question does not appear to have been, raised by counsel. The Legislature of Maine has defined in R. S. (1944), Chap. 75, Sec. 2, a real estate broker as one who sells, buys, or negotiates the purchase or sale of real estate, and has provided, in Section 7 of the same chapter, that no person engaged in that business “shall bring or maintain any action in the courts of this state for the collection of compensation for any services performed as a real estate broker or real estate salesman without alleging and proving that such person, partnership, or corporation was a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose.” Here, the record shows, there was no allegation that the plaintiff was a duly licensed real estate broker or salesman. The plaintiff did state without objection that he was a licensed broker for 1946; and it also appears, in answer to a question from the Court relative' to the statutory license, that the attorney for the defendant said, “My brother
Exceptions overruled.