169 S.W.2d 35 | Ky. Ct. App. | 1943
Reversing.
The appellant and plaintiff below, C.F. Lowther, sued the Peoples Bank for a commission of $7,650 alleged to be due him under a contract that he as a real estate broker made with the bank whereby the latter agreed to pay him 5% commission of the sale price for finding a purchaser of a brewery which the bank sold to the Frankenmuth Brewing Company for the alleged price of $153,000. The bank went into liquidation during the litigation and by an amended and substituted petition Hiram Wilhoit, Banking Commissioner of Kentucky, and a Special Deputy Commissioner, Martin P. Corcoran, in charge of the liquidation of this bank, were made defendants. At the conclusion of plaintiff's evidence the trial judge directed a verdict in favor of the bank on the ground that plaintiff had not averred and proved that he was a duly licensed broker or real estate salesman at the time his cause of action arose as is provided in Section
The petition averred and plaintiff proved that in November, 1937, James B. Brown, President of the Peoples Bank, employed him to find and produce a purchaser of the brewery in consideration of receiving a commission from the bank of 5% of the purchase price. He further proved that on or about November 24, 1937, he produced a purchaser, Frankenmuth Brewing Company, to Brown who told plaintiff that he preferred to negotiate the deal himself from that point without the assistance of plaintiff as he intended to increase the sale price of the property. The sale involved a large sum of money and there were many and long delays before it was consummated in the spring of 1939 when Brown made Frankenmuth a deed to the property.
Section
"No person, copartnership, or corporation engaged in the business or acting in the capacity of a real estate broker or a real estate salesman in a city of the first, second or third class or within five miles of the corporate limits thereof in this state 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 salesman without *427 alleging and proving that such person, copartnership, or corporation was a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose."
Neither the petition filed on May 10, 1939, nor the amended and substituted petition filed on April 18, 1941, averred plaintiff was a licensed real estate broker or salesman; and the amended answer filed by defendant averred he was not.
Plaintiff's evidence shows he produced to the bank a purchaser to whom it sold the property and the one question for determination is whether or not plaintiff's failure to allege and prove he possessed a license to sell real estate at the time his cause of action arose precluded him under the above statute from maintaining this action. A license was not procured by plaintiff until May 5, 1939, but he insists that his services were performed when he produced a purchaser in the fall of 1937, when Brown told plaintiff that he (Brown) alone would conduct the negotiations from that point which resulted in a sale to the purchaser produced by plaintiff. The trial judge stated in his written opinion that as the sale was not consummated until March 1939, some ten months after the statute became effective, and as plaintiff's action did not accrue until after the sale was consummated, he was precluded by the statute from maintaining this action.
It is contended by plaintiff that Section
But it is clear that Section
Section
"On and after the effective date of this Act [which was May 31, 1938] it shall be unlawful for any person * * * to act as a real estate broker * * * without a license issued by the Kentucky State Real Estate Commission."
The quoted language clearly shows that the Legislature had no intention that the Act should have a retrospective effect, but that it was to operate prospectively. Suppose plaintiff had never intended to engage further in the real estate business, could it reasonably be argued that the Legislature intended that he must secure a license in March 1939 just before the deal was closed in order that he might maintain this action on a deal he started in 1937 and completed that year, insofar as his services were concerned, in order to sue for his commissions which did not accrue until the sale was consummated in April 1939? Obviously, the Legislature had no such intention when it passed this Act. From the excerpt above quoted it is patent that the Legislature intended it should apply to sales made by brokers after the Act became effective on May 31, 1938. Long before that date plaintiff had found a purchaser and completed his services connected with the sale.
It appears to be the general rule that a retroactive operation will not be given a statute interfering with antecedent rights unless such be the manifest intention of the Legislature or unless the statute clearly and strictly contains a declaration of retroactivity. 25 Rawle C. L. 786, Section 35; Jones v. Fidelity Columbia Trust Co., 6 Cir.
The judgment is reversed for proceedings consistent with this opinion.
Whole Court sitting, except Judge Rees, absent.