*1 v. BUCHANAN. еt al. YOUNG 976.) (259 July 21, 2dP. Decided No. 7844. *2 right Parties, to recover sec. 29. Unlicensed broker’s 67 C.J.S. See Jur., Brokers,
for
8 Am.
sec.
Appeal judgment plaintiff a from entered favor alleged defendant for an under employment. written contract of The facts are clear and dispute. without regulated
Real Brokers and Estate Salesmen were under 82, Chapter 2, presently desig- Title U.C.A. 1943 which is 61, Chapter 2, nated as Title This U.C.A.1953. title re- quires brokers salesmen to be licensed the State Securities Commission. A condition for such license the brokers shall be bonded and that salesmen shall supervision work under the aof licensed and bonded Plaintiff, desiring broker. estate, approached to sell real Bardsley, one broker, a licensed and bonded sometime in forepart requested permission of 1949 and to sell under Bardsley’s granted by authorization. Permission was Bards- plaintiff ley and was licensed as a real estate salesman in requirements. accordance with the Bardsley, however, did not brokerage intend to conduct or to be active the real Hence, plaintiff estate business. Bardsley expressly agreed in- dependently Bardsley; pay expenses; was to all retain commissions; all responsibility was to take no implicated and was to plaintiffs none of transactions. 12, On June 1949 defendant property listed his for sale plaintiff. A listing agreеment with standard real estate This by plaintiff. accepted signed by defendant months, six period gave plaintiff, for a provided further it property, and sell the exclusive after months three within property were sold if such person to period to expiration of the six-month property, offered previously had whom the plaintiff. paid to would be agreed commission then the defendant; plaintiff or by either not consulted nothing there- knew agreement; and was not a of. property to plaintiff offered
Upon occasions several King the ask- considered since King, no sale but closed one period on Decem- ended high. ing price The six-month too permission, con- Plaintiff, defendant’s with ber parties and some *3 showing property to various tinued February, 1950, re- the defendant forepart of in the time again contacted asking by $1,000. Plaintiff price duced the King stated reduction. King him of the and told Mr. in the interested price he was of decrease in view plaintiff. with the further contact property, made no but protection 1950, three-month February 17, within the On dealing directly plaintiff, and period, without notice bought property. King defendant, with the plaintiff’s for demand commission refused Defendant plaintiff The lower court decided action. commenced this joined Bardsley compensation and plaintiff was entitled Judgment plaintiff. then rendered involuntary as an in favor of for the use defendant and apрeals. plaintiff. Defendant benefit of the rendered some measure of service Doubtless King’s purchase property. resulting in Mr. defendant’s jurisdiction, long in this how- been established has agent may only by ever, recover a broker or upon cannot recover basis virtue of contract Odell, 276, quantum v. 58 Utah P. meruit. Watson 198 Ralph, 243, 772, v. 20 A.L.R. Case P. 640. whether, appeаl Hence, question first raised U.C.A.1943, 82, 2, be- Chapter under Title valid enforceable and defendant was tween by plaintiff. that was hold it not. We any 82-2-1, it for
Section U.C.A. made unlawful engage as a in the business or assume real or a real estate within the state estate broker salesman statutory complying Utah without with the first provisions. defined a “real estate Section then including persons broker” as who for another and for * * * consideration, or or fee lists or offers or at- “sells tempts agrees any to list” real estate. This section ex- pressly provided that a real estate shall have broker complete to fill out and such or securities approved legal forms documents needed to complete involving realty. a transaction Section 82- 2-3 person employed defines a “real estate salesman” as engaged by or on behalf of licensed real estate broker purpose accomplishing any for the act or transaction comprehended by set out the definition of a real estate broker Section 82-2-2 and 82-2-10 mаde it un- lawful for real accept estate salesman to a commission performance specified acts Title 82, Chapter any person, except 2 from employer, provided employer that such must abe licensed real estate necessary implication broker. The of Section 82-2-10—that a salesman anyone not suе employing other than his broker for his expressly commission —was established as *4 legislative law by in 1951 addition to pro- Title 82 which vided that action to recover a fee or commission must brought be instituted and by the broker under whom the employed. (See salesman is 1953.) Section U.C.A. provision prohibits This same any person or association bringing from an action recovery for the done, prohibited which is provision under the of this act to other than licensed brokers, real estate unless persons duly such are licensed under such act as a real time act or service was rendered. estate broker at the provision, applicable to transactions com- while not Such legislative pleted passage, before its is indicative spirit par- 2 and and intent behind all of Title Section ticularly 82-2-10. facts, operation plaintiff’s
Under the it is evident that public policy as an unlicensed broker was contravention plain- mandate. That such fact was within knowledge by open tiff’s is made admission in manifest his court that he could look to a licensed for his broker by subsequent request join Bardsley commission and plaintiff involuntary judgment as an in order receive a for his own use and benefit. listing agreement
It is thus evident that plaintiff prohibited statute; and defendant was in- valid; by plaintiff and was unenforceable unless he could join Bardsley involuntary plaintiff as an 19(a), under Rule question Rules Civil Procedure. Such is the second appeаl. raised 19(a),
Rule U.R.C.P. states that join plaintiff “When a so, who should as a refuses to do or his obtained, may or, consent cannot be proper he be made a defendant involuntary cases, plaintiff.” an Plaintiff party interest; contends that he was the real just against had defendant; claim that under Title 82, Chapter 2, prevented U.C.A. bring- 1943 he was from ing action; listing agrеement that at the time the signed, Bardsley; he was licensed under Bardsley’s presence before the court as a necessary licensed broker was recover; order for joining involuntary plaintiff necessary was therefore prop- agree. er under the law. doWe well be that is the real in interest—
providing any legal claim whatsoever exists *5 agreement between none believe does.
defendant. We by statute. was unauthorized plaintiff and defendant agreement been valid if exe- could have Such authorizing Bardsley behalf cuted for and in knowledge of such Bardsley had no It not. broker. was therein; agreement; no inten- had not interested becoming Similarly, nor de- neither so. tion Bardsley any relationship have to fendant intended listing agreement. Bardsley no interest in had interest Hence, рlaintiff whatsoever. could receive in this contract Bardsley such from interest under no having prevented from an interest his own statute against right. Thus, no time was there a claim defendant at by Bardsley, by plaintiff, which was enforceable through Bardsley. (a), person true is that Rule U.R.C.P. states that a party joined involuntary plaintiff. as an Such person however, party, interest, af- must some negative, firmative or beneficial or detri- party desiring mental interest of to so join person. Bardsley had recalcitrant no bring against interest. could action He no defendant listing agreement party on based since not a assignment thereto and had no of interest therein. Simi- larly, defendant had no contractual cause action made no since he with plaintiff acting Bardsley’s 19(a) none with behalf. Rule permit having does not relationship one no or interest warring parties, whatsoever in the conflict between the fray merely be drawn into the because the real interest, by statutory provision is barred from —who prosecuting , the action his own name inis— legislative need of such to circumvent mandate. judgment of the lower court is reversed. Costs appellant.
WOLFE, J., and CROCKETT WADE, JJ., C. concur. *6 HENRIOD, (dissenting). Justice majority opin- suggesting dissent, that the respectfully
I Chapter purposes ion, in its endeavor to effectuate misapplied and has read that statute of Title has much that into the simply is not there. valid, admittedly unless
This lawful and majority opinion one thе several set forth statutes illegal. reading statute con- renders it A careful of each agreement nor me that outlaws this renders vinces none uncollectable, rightfully-earned and that this by assuming fly not in the record —and that facts findings in the teeth of of the lower court —can the majority Furthermore, position. sustain there is no its failed to affirm- evidence thе record that atively comply with the mandates. 61-2-18, U.C.A.1953, materiality to have no seems passed 1951, subsequent
in this case. That statute transaction, to this entire and does not and cannot affect rights obligations prior contractual created to its passage. legislative light enactment can shed no legislature originally passed on the intent of the 1921 what is now Section U.C.A.1953.
Chapter 2 defines a broker sets forth what activities may legitimately pursue, 61-2-2, U.C.A.1953, pro- post $1,000 (b). vides the broker must a bond. 61-2-6 Section 61-2-3 defines: any person “The term estate ‘real salesman’ shall mean include employed engaged by or on behalf of a licensed real estate broker comprehended by to do or to deal in act or transaction set out or compen-
the definition of a real estate broker 61-2-2 section for sation otherwise.” greatest two support sections which lend to position majority opinion are 61-2-1: any person, copartnership “It shall be corporation unlawful for engage business, capacity of, in the act in the advertise or assume this within salesman real estate a estate broker or as a real
to act provisions of obtaining license under first state without ; chapter” and, 61-2-10: accept a com- estate salesman real “It be unlawful shall performance consideration for the valuable
mission or must except employer, who any person, specified from acts herein real estate broker.” a licensed precedent provisions us, all of the In case before were qualification salesman plaintiff’s a licensed capacity, broker, and in that met. bonded of the Utah signed Division and filed with the Real Estate *7 plain- application the to allow an Securities Commission open application operate a salesman. This tiff to as apparent public inspection The rather at all times. to protect public from purpose of the this entire statute is Young’s application for a fraud. filed When signed “Em- labeled: license he the clause salesman’s read, ployer’s which Recommendation of Salesman” appli- appears certify applicant hereby the name on this “I that whose good reputation, that honest, recommend truthful and of cation is applicant.” granted a license be broker, Bardsley, out the em- thus held himself as ployer integrity posted of vouched for his protection him. It clear bond as to those whо dealt with brought an action that were this third broker, salesman, whether or not disclosed and agreement se, whatever inter would be liable for signed application of salesman.1 The filed conduct agency relationship. an amounted to ostensible The ma- maintains, however, arrangements jority that Young, irrespective application pro- visions, may be and are such as to manifest the intent that agency employment relationship no such be created. The Agency, (b). Sec. Sec. comment 1Restatement contention is the support of that strongest evidence Bardsley: testimony you from the State had a license “Q. us whether Tell year? during A. I did. as estate broker a real you Young еmployed as “Q. or not E. whether W. Tell us year? during was. A. He that a salesman Yes, year? May A. employed
“Q. 29th that was he so on And sir. understanding you any with Mr. “Q. Did might Young payment earned regarding the be of commission your employed in office? while that he transacted
on business Yes A. sir. just agreement writing
“Q. A. that verbal? Verbal. Was you “Q. A. I had tell the court that was? Will what Young my my my paid Mr. state license bond commission. my under аnd wanted if could write came the office to know he only my I the next I told him renewed license so that commission. year estate, if I to sell real it cost me half the wanted would price pass by, that it would if it I intend make I let but didn’t during year if real estate And he effort sell he asked my yes, could sell under license and I told him with this understand- responsible ing, that was to contracts he be for all and that all sales go attorney, implicated to an made must that I wasn’t to be way through whatsoever court or otherwise and he was to have all made commissions.” Bardsley also he told the stated that join I suit “unless have to.” would not a law prerogatives the usual admitted most *8 given to the salesman.2 But the of a broker were thus require expressly impliedly the statute does nor personally Rather, broker conduct the business affairs. salesman-agents engaging of 61-2-3 authorizes the subject principal-agent agent 2Normally relationship, in a the is However, principal. the to as the Eestatement of control * * * * * * Agency phrases it, ‘Principal’ includes both person has directed act who another to on his account in business dealings represent hearings proceedings him in but who has physical no control or of control over the other’s conduct and employs having also a who another to in his affairs * * Agency, 1, c, p. control Eestatement of Sec. Comment 378 placed limitation is of and no the conduct the business rights type the broker
on of the number or delegate to them. Bardsley city paid
Young owed the license fee $25 Bardsley Richfield, Young him of and testified that told pay expense operating (Bardsley’s) of broker- Young spring age. that in of 1949 he further testified working “supervision” of “at time” under the Bardsley. agree- Apperently the salesman understood pay exрenses and ment to mean that he was all receive big really made, all' commissions unless a sale were participate, for he which case the broker was said: “I under a broker when he run across a real work and I would any consequence, say something, big ranch, estate farm or deal put ourselves, we that deal over between but I would still would be under him.” not, states, majority
The facts are
as the
clear and with-
dispute. They
very
dispute.
agree-
out
much
are
pieced together
ment between
as
application,
understanding,
from the
the verbal
the con-
parties
testimony
each, obviously
duct
and the
reasonably
subject
interpretation.
to more than one
interpretation
employed by
majority opinion
re-
by
ambiguity
construing
agreement
solves this
illegal
violative
statutes
thus
and void. How-
ever,
law
is well established that when the terms of an
agreement
possible
interpretations,
two
one of
which the
would create a valid contract and
illegal
the other
void,
would be
the former will be
adopted.3
understanding
The verbаl
Young reasonably may
interpreted
from the record be-
fore us as a lawful
between broker and sales-
whereby
man
the latter was to
business,
handle the
keep
alive,
the broker’s contacts
and in the
event
a law suit
I.,
Co-op.
1934,
v.
281,
Zion’s
M.
342,
39 P.2d
3Schofield
Contracts,
A.L.R.
on
546, p. 93;
Corbin
Am.Jur.,
Vol.
Sec.
Evidence,
226, 229.
§§
*9
majority
not,
the
whole,
and was
to make the broker
the statute.
attempt
circumvent
suggests,
an unlawful
support
construction.4
this
findings
court
the lower
the
that
in the record
Furthermore,
evidence
there
no
working under
anyone that he was
told
ever
regulations
statute,
of the
nothing
broker,
in our
agency requires
Commission,
in
law
Securities
party
third
nor
principal
to the
be disclosed
appear
contracts entered.5
principal
on the
the name
Young
Buchanan’s
final sale of
instrumental
upon.
agreed
property.
earned the
He
Young
“engaged by” the broker
record discloses
* * *
compen-
any act
deal in
or transaction
“to
language
sation or
within
of Section
otherwise”
Bardsley, had
Thus
as salesman for
U.C.A.1953.
good
against
of action
the brоker for the commis-
cause
compen-
sion. But
the salesman collect
earned
unwilling
join?
sation from the
when his broker is
seller
joining
the broker as
The method
salesman here
unwilling party plaintiff
seller,
an
in an action
merely
circuity
action,
avoided a
not violative of
19(a)
since
in law
an
Rule
the broker did
interest
securing payment
amount owеd.6
appears
strong
justifying
This
to me a
case
our sus-
taining
judgment of the
court.7
lower
appeal,
prevailing
4On
is entitled to have us consider “all evi
every
dence,
therefrom,
fairly arising
inference and intendment
light
most favorable to him.” See Toomer’s
R.
Estate v. Union Pac.
Co.,
121 Utah