*1 848 employees

ests, students property, [Emphasis institution. added.]3 carry- the fair and correct

Consequent to procedure our

ing out of the justice, the verdict rendered indi-

system of jury believed the officer

cates that scope within the of his acting and the protecting interests college and that it was evading the offi- wrongfully

who acted

cer. my judgment wholly

It is it is un- upset for this Court to now

justified carefully

procedure which has been followed;

fairly do so is detri- prevention investigative

mental crime justice. to the administration I

would affirm the conviction. GENERAL

DIVERSIFIED CORPORA-

TION, Appellant, Plaintiff and

v. COURSE, INC.,

WHITE BARN GOLF et

al., Respondents. Defendants and

No. 15462. Thomas N. Crowther of Parsons &

Supreme Court of Utah. Crowther, Salt City, Lake Aug. appellant.

Robert V. Phillips, Ogden, for defendants respondents. MAUGHAN, Justice: Plaintiff, a corporation, Utah initiated this action to commission, recover a claimed pursuant to a written agreement denomi- nated Agree- “Finders ment.” After completing discovery defend- ant moved for summary judgment on the ground plaintiff performing the serv- instruction, Cal.App.3d As to Cal.Rptr. (1973); the correctness of that see 104 State Sedillo, Davis, State v. Wash.App. 81 N.M. 462 P.2d 632 (1969); Davis, People Colo.App., Valdez, 565 P.2d State v. 277 Or. Robles, People See also *2 defendant, him to specified estate broker as in and ices of a for plain- this service U.C.A., 1953, 61-2-2, was unlicensed un- tiff was to receive a § commission. No real was, therefore, 2, Title chapter der and estate broker was in involved behalf of maintaining an action precluded from such plaintiff either or defendant. 61-2~18(a), U.C.A., The trial under § The one, trial court ruled that who under- summary judg- granted court defendant takes on a commission or fee to basis secure ground plaintiff and ment on the aforecited purchaser a property for belonging to an- appeals. affirm. No costs awarded. We other, is within the Real Estate Broker’s U.C.A., 1953, statutory All references are to Statute, Title Chapt. and must be noted. unless otherwise 61-2-18, prohibits licensed. an action for agreement The recited as consid- finders recovery of compensation. consultation eration the listed services and 61-2-2, provides: set forth. Defendant was described as a seeking purchasers, who would corporation The term ‘real estate broker’ within the agreement willing be enter into an meaning chapter shall include all The purchase property. parties its real persons, partnerships, associations and right should have “the agreed plaintiff corporations, foreign domestic, who purchase for the property act as finder of for fee, another for a commission or agreement corporation.” from the The re- other consideration, valuable or who with cited that in consideration of the services as the intention the expectation or finder, plaintiff agreed pay a upon the promise of or receiving collec- the The percent price. agree- 13½ of sales ting fee, a commission or other valuable “sale, according ment the terms consideration, . . . assists or directs transfer, sale” “the contract for included procuring the prospects of . sale, disposal substantially or other of all or which does or is calculated to result in the described; all of the or as a property merg- sale, exchange, leasing renting of er, consolidation, reorganization or other of . . . [Emphasis sup- Corporation.” plied.] agreed would not Plaintiff further it In Anderson v. Johnson the Court ruled entitled to event no that one accompanied a licensed real purchase property during was made of broker, and assisted him in obtaining of agreement. the effective time Plain- farm, listing owners, of a from the given membership tiff was also lifetime salesman; anot real estate broker or with- country club. defendant’s Therefore, in the statutes. The further agreed complaint, seeking recovery on the broker’s any liability under for or in should “not be assistance, such stat- respect any matter not with of connected ed a claim. Agreement except good for lack of this This Court stated: obligations expressly faith and for assumed . The second of stat- Agreement.” parties agreed in this The ute -2 for more calls careful consid- to render [61- no other services -2] eration. Do the words and terms ‘or as- specifically provided. par- than those $1,545,000.00. sists or specified price procuring pros- ties the sale directs of pects’ apply appellant? Does the fol- deposition plain- President lowing appellant: acts of by published quoted tiff was ‘or assists . . or directs . the ne- in its decision. Plaintiff’s memorandum gotiation closing of any purpose agree- President stated give does or is calculated to result in the opportunity ment was to him an as a buyer. objective exchange, leasing renting finder to His find was to buyer locate for the real estate’? 725, 729, 108 Utah P.2d 167 A.L.R. 768 very these terms are broad and

While in are those which result in legal inclusive, they we think do not. The liabilities parties. between the Nothing purpose estate business is primary the man who intro- does, or its use and from such duces the real estate to sell real estate broker has receive a fee or effect. This is true even though transactions commission. *3 real estate broker necessary listings, it is to secure contracts to While man who introduces prospect’ him a the term ‘real refers his commissionin the event he makes a sale.3 purchase realty interested in the one obtaining a lease of its use and does Here, the written agreement, finder’s you might refer to one from whom not effect, appointed plaintiff as special agent listing. secure a with find a pur- legislature prohib- Had the intended to chaser for defendant’s property. This assisting it one from a real estate broker agreement even plaintiff recited that owed listings, to secure it could have done so agent’s duty good faith to princi- his difficulty. without If we should stretch pal for a commission based on meaning of the statute where it uses specified price.4 sale the words plaintiff Corson v. Keane5 urged his . negotiation ‘or assists activity was not covered under the real any . of statutes since he did not calculated to result ex- negotiate, merely put but the defendant in change, leasing renting any position might viz., where he negotiate, estate’ plaintiff’s bargain merely bring to include the as a real estate parties two together. salesman, it would be as feasible to questioned “negotiat- whether The prepared the abstractor who ing” required the conducting by a broker of property stenogra- abstract of the or the all proceedings in a transaction from the pher typed the contract of sale or initial step to the making of a contract or or lease used in the deed transaction.2 whether it could connote something less. Wade, concurring in a opinion, The court stated a real estate broker is a stated: special agent of one him, who employs reading A of the statutes his authority is circumscribed the terms regulating real estate brokers makes it of the agency agreement. He may by its apparent they were enacted for the bene- terms required to effect a merely sale or protect fit of the them from produce a customer. The court cited the unscrupulous dishonest and real estate following: agents. protection of the public Such is The essential feature of a broker’s em- not needed from the casual or remote ployment is to bring parties together influence of a stenographer person or a in an mind, amicable frame of with an who introduces a real estate broker to attitude toward each other and toward may one who wish to deal with him. the transaction in hand permits Neither the nor the man their working out the terms of their who introduces the broker in the example agreement. They may reach that agree- I have mentioned are participants active ment without his aid interference. In- affecting deed, contract estate or in a transaction of magnitude, any liability persons entering into the terms would never be settled before- listings. such contracts or dealings hand or negotiated finally by the broker. which the statutes aim to 424-425, Powell, 372, 374, 2. 108 Utah 160 P.2d 729. 4. See Seal v. 9 Utah 2d P.2d 432

3. 108 Utah 160 P.2d 730. 5. 4 N.J. 72 A.2d that the has This does not mean broker court ruled the statutes involved . negotiated not the transaction. clearly and explicitly prevented others than apply the statute does not to such If brokers from receiving remuneration for situation, then it is a toothless enactment. aiding another in consummating the sale of Every unlicensed broker will make the by furnishing the name or argument that here same names of purchasers. interested made, that he did not have to has In Whitaker v. Arizona Real Estate agreement upon actual all parties Board,8 the court interpreted the following details, phase was some provisions of A.R.S. 32-2101: thing for the themselves deter short, every mine. In unlicensed broker 24. ‘Real estate broker’ per- means a to carry will be enabled on his business son, salesman, who, other than a for an- just as he did before the statute came other and for compensation: . *4 existence, simply by calling into himself a (h) Advertises or holds himself out as finder, introducer, originator, an in an being engaged in the business of buying, stead of a broker. This would be an selling, exchanging, rental leasing or real absurd limitation of the statute and one estate or counseling or advising thereon. policy. unfounded in reason or A broker (i) Assists or directs in the procuring of ‘negotiations’ as much when he prospects, calculated to result in the . brings parties together in such frame of leasing or rental of real estate. [Empha- they mind that can themselves evolve sis supplied.] when plan procedure, he himself personally carries on the discussion and statute, The court observed the being re- agreement to accept specific induces an nature, required medial in liberal construc- Krancer, v. provision. Baird 138 Misc. accomplish tion to its purpose. The under- 85, 360, (N.Y.Sup.Ct.1930). N.Y.S. lying purpose of statutes regulating real Jersey The New court ruled the broad estate activities was to the public language of the real estate broker’s statute unqualified from unscrupulous people. in the conclusion the agreement, resulted of'plaintiff It ruled the conduct fell within upon plaintiff’s predicated, which suit was statutory definition of “real estate bro- statutory prohibition.6 was within the ker.” The explained plaintiff assisted v. plaintiffs Carnahan McCarver7 con- in the procuring prospects for “another” merely supplying tended that information himself; and not for compensa- he received might purchasing as to who be interested in prospects. tion from the The court noted assisting real estate did not constitute an- the statute did not specify the source of the procuring prospects. other in the Further, compensation. plaintiff’s conduct statute, Oregon is similar leasing calculated result in the 61-2-2, provides a real estate broker was: rental of real It estate. concluded the trial who, any person for another court had not erred in its determination or with the inten- requiring plaintiff be a licensed real estate expectation upon tion or in the broker. receiving collecting com- promise of hand, In the matter at relies on pensation: ... assists or directs [a] exception by judicial the finder’s created prospects, the procuring calculated California, viz., construction one exchange, leasing in the to result 696.010(8)(j). estate. simply rental of real O.R.S. finds and introduces two to a 36, Validity, (1970). 24 A.L.R.3d Anno. 7. 255 6.See Con- Or. 463 P.2d 857 struction, Oppor- And Enforcement of Business Contract, 6(a), pp. tunities or Finder’s Fee § Ariz.App. 8. 26 548 P.2d 841 1172-1173; Brakhage Georgetown Associ- ates, Colo.App. Halandras, Colo.App., Goff procuring prospects”; licensed which action is calcu- need not be estate in the The California lated to result sale of real estate. estate broker.9 as a real ex consistently adhered to this have courts by plaintiff The duties undertaken years, fifty in excess of period ception for precisely fall finder’s within the although in statutory definition of a real estate broker. the definition of a include in amended No evidence was adduced to who “solicits” for broker one exceptions transaction within of the (Stats.1929, ch. purchasers. contained 61-2-2. 223). the court ruled Subsequently, § words, of these by the addition that ELLETT, J., C. WILKINS mean the not intend them to legislature did HALL, JJ., concur. pro an owner and a as “introduces same Spiv In Crofoot spective purchaser.”10 CROCKETT, (Dissenting): stated there had been no the court ak11 impelled I am act, grounds to dissent on the change which would of the amendment bargained for and re- definition of who was scope of the broker, plaintiff’s service, ceived the benefit of the interpretation since the disadvantage Under such cir it suffered no because v. Beinhorn.12 in Shaffer stated, cumstances, there would technical fact the court was not modify interpreta broker, justification to licensed as a real estate be no legislature acquiesced had under those circumstances it is contrary tion in which *5 principles justice of time. long period a fundamental of and equity for such the defendant is repudiate allowed to 10131, Business And California Section agreement pay plaintiff’s its to for serv- (as 1961) pro- amended Professional Code ices.1 vides: within the mean- A real estate broker court’s decision would be correct if who, for ing person high is a the service rendered involved a degree education, a com- expectation training special of of quali- other that, negotiates absence, to do one or pensation, does fication so in its there might following the acts for another or be some hazard to the more of welfare. In instance, such an it others: is understandable that a person who undertakes to render such a sell, buys or offers (a) or offers to Sells specialized service without a license should pur- sellers or buy, to solicits penalized by be being permitted not to re- of, of, listings or obtains chasers solicits cover therefor. theOn other hand where purchase, the sale or ex- negotiates the service rendered to another does not change property. of require specialized qualifications, such it statutory provision this is contrast- When egregious injustice seems to me but an to language of sec- comprehensive ed with the for, permit receive, one to ask and take the judicial a apparent 61-2-2 it becomes tion benefit of the service and pay refuse to for interpretation creating exception a finder’s upon it a technicality. language the express would violate the of enactment. A “real estate broker” under I have no disagreement proposi- with the one, another, licensing this section is who for and for tion that the statute should be so commission, in applied a fee or “assists or directs construed and as to effectuate its Beinhorn, 569, 9, supra. 9. Shaffer v. 190 Cal. 213 P. 960 12.Note 1, (1923); Kelley, Tyrone v. 9 Cal.3d 106 Cal. Rptr. (1973). P.2d 507 65 dissenting opinions Mosley Johnson, 1. See in 22 Utah 2d Meridian Jergins, Cal.App.2d 271 10. Freeman v. Co., Utah, McGlynn/Garmaker (1954). P.2d Cal.App.2d 11. 113 P.2d 45 particularly only is noted that the purpose pre- not to But that

purpose.2 persons given agreement, from the under the industrious defendant willing vent and in enterprise only and the thing their initiative and that it is claimed to employing have in order make done, to rendering useful service was to a act as a “finder” this very therefrom, designing transaction; nor to enable living substantial this did advantage take of scheming persons any way not in intrude within the preroga- efforts, them. On then refuse require their responsibilities tives the legitimate application only contrary, the special the of training qualifications a real pub- be to the the statute should of estate broker. protection. needs where it

lic in areas reasons, foregoing It is the and upon application, it should proper regard very simple principle the and fundamental as stat- inasmuch kept in mind also justice profit of that no one should from the upon limitations places one which ute is paying efforts of without compen- another enjoy should everyone freedoms which therefor, permit sation that I would not livelihood, strictly it should be earning their with its break faith commit- upon such incursion against construed ment under invoking liberties. those fundamental technicality a broker’s license require- giving incongruity illogic upon perpetrat- ment plaintiff, and thus interpretation is seen statute over-broad ing what seems to be an obvious cheating of done, is would if that it in the fact that rewards out of the for its way aids or who anyone efforts.5 matters, even including assists in such party drives see chauffeur who who types

property, the

contract, who keeps clerk filing

files order. it would defeat or

I do see how not

impair purpose the true only person acts permit *6 “finder,” nothing regard who does Utah, STATE Plaintiff and nor formulation negotiating Respondent, contract, as to the condition of of a nor title, about the trans- nor other details AUSTIN, David Lee Defendant action, sup- services.3 In for his recover Appellant. that, it is submitted port position, sig- there opinion, main is no shown 15602. No. wording nificant between difference Supreme Court of Utah. California; and own and that of our Tyrone Kelley,4 and that their cases of Sept. 1978. cites, are grounded opinion main others the jus- reasoning principles upon sound just to a result if would lead

tice which case.

applied in this the light

Reverting to the facts above, it said should

what has been Board, opinion. seq., main Estate foot- See footnotes 9 et Arizona Real 2. Whitaker v. opinion. note main Contracts, Corbin, Section 1512 5. 6A at states Johnson, to be main that “the defrauder seems the de- footnote 1 See Andersen concurring enriching plain- at the especially Wade’s fendant himself opinion, who is expense.” opinion. tiffs