275 P. 98 | N.M. | 1929
Brokers 9CJ § 65 p. 566 n. 54. *655
By Code 1915, § 3300, "all real estate * * * agents, or those who buy and sell real estate on commission" are required to pay a license or occupation tax of $10 per annum. By section 3304 all persons subject to such license or occupation tax are required, "before doing business," to make out an application and pay the tax; and by section 3306 any person "who shall engage in or carry on any business or avocation" for which a license is required, without having paid the tax, is taxed doubly, and a refusal to pay the tax after notice is made punishable as a misdemeanor.
It would not be profitable to review the many cases cited by counsel respectively. Most of them will be found in 4 R.C.L. 301 et seq., and 9 C.J. 565 et seq. The different courts have reached different conclusions upon the question, based upon varying statutes and other considerations. It has frequently been held, as said by both the foregoing texts, that one who is not a regular broker, but acts only in an isolated case, may recover upon a special contract under which he has earned a commission, though he may have failed to take out a license. We favor this doctrine as applicable to this case under our statute. It appears on the face of the complaint that appellant was not a real estate agent, was not doing, engaged in, or carrying on that business. Moreover we think we are committed to this doctrine by Goode et al. v. Loan Co.,
Appellee contends that appellant is not in a position to urge any question here because he failed to take exception to the findings of fact and conclusions of law. The point does not seem to be well taken. There were no findings of fact or conclusions of law. A single proposition of law was raised in the lower court and ruled against appellant, *656 and he duly excepted. There was no failure to direct the court's attention to the error.
It follows that the judgment should be reversed, and the cause remanded, with direction to overrule the demurrer. It is so ordered.
BICKLEY, C.J., and PARKER, J., concur.