185 S.W.2d 908 | Tenn. Ct. App. | 1944
This is an action for the recovery of real estate commissions, successfully defended below upon the ground that the broker was not licensed as required by Chapter 182, Acts of 1919, Code, Section 1712 et seq. The plaintiff has appealed and, admitting that he was not a licensed real estate broker, insists that he is entitled to recover under the single transaction rule recognized and followed in Trentham v. Moore,
For defendant it is insisted that the Act of 1919 was not designed primarily to raise revenue but to regulate and control the real estate brokerage business, and that a single transaction, if in contravention of the declared public policy, cannot give rise to an enforceable contract.
The insistence that the statute is regulatory in nature seems well supported by the terms of the Act (1) requiring the execution of a bond indemnifying the public against the wrongful acts of such brokers, (2) providing for the giving of information under oath of the composition and location of the business to be conducted, (3) providing for the revocation of the license and the suspension of business until a new license is issued and (4) making it a misdemeanor to engage in such business without complying with the Act. This purpose seems to have been assumed in Johnson v. Baker,
The question then is: Can the single transaction rule be applied to defeat the solemnly declared public policy of the State to the extent that a forbidden transaction may be initiated and carried out and the claimed right of action enforced provided the same person is not a second time guilty of a similar violation? To hold affirmatively would leave the public, pro tanto, without the protection intended by the Act and we do not think such holding tenable.
The cases of Wender v. Lobertini,
The case of Walker v. Brownsville, etc., Co.,
That case involved the right to recover for the services of an architect not licensed as required by Code, Sections 7098 and 7099. The single transaction rule was rejected because the statute was found to be "a police measure, not a revenue measure", the Court concluding:
"The single isolation (transaction) rule, applicable to liability for a privilege tax, has no application to a statute enacted in the exercise of the police power of the state for the protection of the public safety and health. One transaction in violation of such a statute, could jeopardize the public safety and health."
We think the judgment for defendant should be affirmed. The proof shows that plaintiff had an office in the place of business of a licensed real estate broker of Chattanooga and, without disclosing to defendant that he was not regularly licensed and giving as his business address that of the real estate broker, solicited the listing here involved. The listing contract is upon a printed form generally used by real estate brokers in Chattanooga and in the course of the conversation with defendant plaintiff made inquiry as to other real estate owned by *44 defendant and the price at which defendant would sell. It is true plaintiff says he was not engaged in the real estate business but, having himself initiated the transaction, we do not think it can be said, under the circumstances, that he was not holding himself out as a real estate agent or that the transaction was casual.
In Wender v. Lobertini, supra, 151 Tenn. at page 482, 267 S.W. at page 368, Trentham v. Moore,
The assignments must be overruled and the judgment affirmed.
Hale and Burnett, JJ., concur. *45