162 A. 666 | Pa. | 1932
Argued May 10, 1932. In this case the court entered judgment for defendant on the pleadings; plaintiff has appealed.
The action was assumpsit to recover a commission on the rents of a property in the City of Erie owned by defendants, for which plaintiff claims he procured a tenant in pursuance of a verbal contract with defendants, under which he was to be paid a commission of $11,550, two per cent of the aggregate rentals, which, for the twenty-one years of the lease, would amount to $577,500. Defendants filed an affidavit of defense, in which, under the head of new matter, it was averred that the plaintiff at the time of the transaction for which he claimed commissions was a regular real estate broker located in the City of Newark, State of New Jersey, engaged in the leasing of real estate throughout the United States. It was set forth that defendants were advised by counsel that before the plaintiff could lawfully enter into a contract for the doing of a real estate business as a broker in this Commonwealth, or for leasing the premises of defendants in the City of Erie, he was bound to pay a mercantile broker's license fee assessed by the Commonwealth and take out a license authorizing him to do a broker's real estate business therein (Act of May 7, 1907, P. L. 175, section 1,
Defendants moved for judgment in their favor for want of a sufficient reply to the new matter contained in their affidavit of defense as provided in the Act of April 22, 1929, P. L. 627, section 17, and the court below, being of opinion that all brokers, no matter whence they hail, must pay a tax if they do any business in this State and that, if a person is actually engaged in business as a broker, the procuring of a license is a condition precedent to the lawful transaction of business and consequently to the recovery of compensation for services, entered judgment on the pleadings in defendants' favor.
If plaintiff was actually engaged in carrying on the business of a broker in this State, the conclusion of the court would be right, irrespective of where his office was or whether he maintained an office in this Commonwealth. On the pleadings, however, it cannot be said that he was carrying on a brokerage real estate business here, or that the present transaction was not the only one in which he engaged in this State. We are not prepared to hold that a single transaction would subject him to the tax here, or require him to take out a license before he could recover for his services. We held in Meyer v. Wiest,
Our conclusion is that the instant case is not such a clear one as should have been disposed of on the pleadings (Neuman v. Wenger,
The judgment is reversed with a procedendo.