54 W. Va. 354 | W. Va. | 1903
Lead Opinion
M. V.. Ober brought his action before a justice of the peace of
“3. The court instructs the jury that no person without a State license shall practice the business of a real estate broker by buying or selling real estate for others, for profit or reward; and if you believe from all the evidence that the plaintiff was a real estate broker, without State license^ at the time he claimed*356 to Rave sold defendant’s farm, or at the time that he claimed to have been authorized by defendant to sell his farm, for $250.00 for his services in making such sale, you will find for the defendant.
“4. The court instructs the jury that a real estate broker is one who buys or sells real estate for others, for profit or reward; and that a real estate agent who buys or sells land for others for profit or reward, is a real estate broker.
“5. The jury are instructed to find for the defendant.”
Which instructions the court refused to give and gave the following instruction:
“The jury are instructed that if you believe from all the evidence and circumstances that the defendant, John Stephens, employed M. V. Ober to sell his farm at the price of twenty-five thousand dollars, and the plaintiff, M. V. Ober, did sell said Stephens farm at the price and upon the terms agreed upon in said contract of employment and if you further find from all the evidence and circumstances of the same, that said Stephens was to pay said Ober two hundred and fifty’ dollars for making said sale, then you should find for the plaintiff” for the plaintiff, over the objection of the defendant. To the ruling of the court in refusing to give said three instructions for the defendant, and in overruling the defendant’s objection to the said instruction given for the plaintiff the defendant excepted.
On the 27th day of May, 1902, the jury found for the plaintiff and assessed his damages at $250. The defendant moved to set aside the verdict because it was contrary to the law and the evidence and grant him a new trial, of which motion the court took time to consider, and on the 14th day of June, 1902, the court set aside the motion and entered a judgment in favor of plaintiff, upon said verdict against the defendant John Stephens and John C. McEldowney, his security on the appeal bond. The defendant procured from one of the Judges of this Court a writ of error, assigning several errors.
The first and third assignments of error raise the question of the validity of the contract sued upon, by reason pf the plaintiff practicing the business of real estate agent in buying and selling property for others for a commission or reward, without having a State license therefor, as provided in chapter 32, Code. It is contended by plaintiff in error that for the cause stated
The first assignment is that the court erred in not permitting plea Ho. 2 to be filed. Under the ruling ol the court admitting all the evidence under the general issue that could have been introduced by the defendant under the plea this was immaterial.
The third assignment of error is in refusing to instruct the jury as set out in bill of exceptions Ho. 4, refusing the instructions of the defendant numbers 3, 4 and 5_, hereinbefore copied. The authorities touching .the validity of the act arc conflicting. Many of those without this state holding in favor of the' proposition of defendant, that the contract of plaintiff is void, being in violation of the statute which forbids any person “to practice the business of stock or other broker, by buying or selling for others, stocks, securities or other property for a commission or reward” without a license therefor. In Stevenson v. Ewing, 87 Tenn. 46, it is held that: “Real estate brokers are forbidden by acts of 1885, chapter 1, section 46, to pursue their avocation without license; and an unlicensed broker, who, in violation of this act, negotiates the sale of land for another cannot recover any compensation for his services. The contract for compensation in such case is illegal and void.” The section referred to provides that the ocupation of real estate broker “Shall be deemed a privilege and and be taxed and not pursued or done without license.” Much stress seems to have been laid in the opinion in that case, upon the words of the statute “not pursued or done without license.” This decision quotes with approval from Cooley on taxation (2d ed.) p. 572: “When a tax takes the form of a tax on the privilege of following an employment, convenience in collection will commonly dictate the requirement of a license, and the person taxed will be compelled to pay the tax as a condition to the right to carry on the business at all. In such ease the business carried on without a license will be illegal, and no recovery can be had upon contracts made in the course of it;” and cites Johnson v. Hulings, 103 Pa. St. 498; 49 Am. Rep., 131, where it is held: “An unlicensed real estate agent subject to penalty for doing business without a license cannot recover compensation under a contract for such business,” and also Holt v. Greene, 73 Pa. St. 198; 13 Am. Rep. 737, where it is held: “A commission broker who has not procured a license as required
The second assignment is that the court erred in permitting to bo introduced as evidence before the jury on behalf of tho plaintiff, the paper writing marked exhibit' 3, with plaintiff Ober’s testimony, purporting to be a contract or agreement be tween the said M. Y- Ober, agent for John Stephens and A. 0. Ruby, for the sale of the farm to said Ruby, which is set out in bill of exceptions No. 6, and is as follows: “This agreement, made this 19th day of September, 1901, between M. Y. Ober, agent for John Stephens, of the first part, and A. C. Rub}', party of the second part, witnesseth, that the said Ober, agent of John Stephens, has this day sold to A. C. Ruby the farm of said John Stephens, lying in Magnolia District, Wetzel Count}', West Virginia, being the same land pur chased by John Stephens from Robert D. Leggett and D. M. Alexander, and also including a small piece of land owned by said Stephens in said District, containing G20 acres more or less, and the said Ruby agrees to pay the sum of $35,000.00 cash for said lands upon the execution and delivery of a good and sufficient deed for the saíne. And the said
Plaintiff testified that on the 16th day of September, 1901, lie had a verbal contract with the defendant to sell his farm for him at $25,000.00 for which ho was to pay him $250. It docs not appear from his testimony that it was agreed just what the terms of sale should be. He says he spoke to L. M. Stephens informing him that he had John Stephens’ form for sale at $25,000.00 when Stephens remarked he had a man who would take it at that. Ho said John Stephens told him to go ahead and sell the farm for $25,000.00 and he would give him $250, and that Stephens mentioned something about his tenants, and that plaintiff told him they would be taken care of; that the contract to sell the land first started on Sepember 16, and that Stephens told him after that, about Wednesday following — he thinks about the 18th — lie told him again. He was asked how long after that it was until he sold the land to Ruby. He said he considered it sold then through Mr. L. M. Stephens and as soon as Mr. Stephens came to town and Ruby was there he said they would get them together and fix things up; that he met John Stephens and told him to bring the deed down; that Mr. Ruby came to witness’ office and he went over to the Eakin House and to Mr. Stephens ’ over there and said, “How Uncle John I have sold that farm to Mr. A. C. Ruby here, he will pay you ■ all cash or part cash.” And Ruby said “Tí I don’t pay all cash I don’t want no lien retained on the land; I want the land clear; I would rather give personal security;” and Ruby said, “Yes sir, I will pay you all cash or part cash,” and Mr. Stephens said, “Well all cash will be acceptable.” Witnes further said that Stephens called L. M. Stephens out and told him that ho wanted to see him; that witness did not know what their conversation was about. John Stephens did not return, but L. M. Stephens returned and told witness what was said and witness told Rubj’-, “just let it rest, then.” John Stephens testified that he told L. M. Stephens that it looked to him as if Mr. Ober wanted to force him to sell his land whether he was willing to or not, and that he said, “I wouldn’t let him sell anything for me now; since he has
The contract or agreement mentioned and set out in bill of exceptions No. 6, admitted as evidence was entered into between the plaintiff and Ruby the alleged purchaser without the knowledge of defendant. Plaintiff testified that the contract was written some four or five days, or possibly a week after tire plaintiff, defendant and Ruby were together, and it was dated back to that day and that defendant was not present when it was written, and it is not claimed that defendant knew anything about the written contract. It will be observed there is no mention made in the written contract of taking care of any tenants who might be on the land as was understood between the plaintiff and defendant as shown by the testimony of plaintiff himself, as well as other witnesses. In Chapman v. Jewett, 24 S. E. 361, the court of appeals of Virginia holds that “verbal authority to sell land confers no power to execute a contract to convey” and in Halsey v. Monteiro, same volume, 258, by the
The fourth assignment of error is the giving of the instruc
For the reasons herein stated there is no error in the judgment and the same must be affirmed.
Affirmed.
Concurrence Opinion
Note by
(concurring).
I think the admission of the contract was not reversible error, if error at all. 'The issue was not whether a binding contract of sale had been made, or whether Ober had authority to execute a. written contract for sale of the property. It was whether Stephens had agreed to pay him the amount he claimed 'for effecting a sale of the land, and the written agreement permitted to go to the jury only tended to prove that Ober had done more than he agreed to do, if his agency did not extend to the signing of a written contract of sale, and corroborated his testimony. The written contract is not manufactured eveidence. It does not appear that Obcr’s authority ended with the successful effort to consummate the sale on the day on which he got the parties together.