Edmonds v. FEHLER & FEINAUER CONSTRUCTION CO.
| Decision Date | 21 February 1957 |
| Docket Number | No. 750.,750. |
| Citation | 149 F. Supp. 396 |
| Parties | Charles R. EDMONDS, Plaintiff, v. The FEHLER & FEINAUER CONSTRUCTION COMPANY, Inc., a Kentucky corporation, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
Charles E. Lester, Jr., Newport, Ky., for plaintiff.
W. R. Seidenfaden, Newport, Ky., for defendant.
This is an action on a contract. The plaintiff alleges that in June 1955 he and the defendant entered into a contract by the terms of which the plaintiff was employed to act as sales manager and to seek out, interview and develop prospective purchasers for housing improvements in a residential housing project owned by the defendant and known as Vista View Subdivision in the City of Fort Thomas, Kentucky; that as a part of his duties the plaintiff was to act as agent for the defendant and on behalf of the prospective purchasers to arrange financing of property purchased by them, display model housing plans, secure contracts of purchase, and to do anything and all things necessary to contract for the defendant and on its behalf for the sale of and the disposition of housing units which it owned and which it erected in the subdivision. Compensation for these services to the plaintiff was to be a sum equal to 2½ per cent of the sale price on all housing units sold in the subdivision, the commission to be paid at the time of sale of each unit. By the terms of the contract it was agreed that the arrangement should be in effect and full force for a period of five years from its date unless earlier terminated by mutual consent. The plaintiff alleges that the contract was terminated by the defendant through no fault of his and to his damage, both current and prospective. The plaintiff alleges that the defendant is indebted to him for work done under the terms of the contract and has commissions for sales made during the time of his active employment and before his discharge in the sum of $74,176.25.
The court takes cognizance of the fact that the City of Newport, Kentucky, is a city of the second class and within five miles of the property involved.
It is the contention of the defendant in support of its motion to dismiss that the complaint must conform to the provisions of KRS 324.320 and that in order for the plaintiff to sustain his claim it is necessary as a jurisdictional fact that he should allege that he was a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose.
The plaintiff acknowledges the provision of this section of the Kentucky statutes but contends that it does not apply to him as he was a regular employee of the defendant and is excepted from the provisions of this statute in its requirement that he have a real estate broker's or salesman's license by the provisions of KRS 324.030(1).
In the interest of clarity and since this must be ruled upon in the light of the statutes and their construction, I think it appropriate that the statutes involved should be recited in full:
The matter of regulating and controlling real estate brokers and salesmen in an effort to protect the public from exploitation has evidently been of concern to the legislatures of the various states. Research reveals that many, if not all, states have legislation on this subject. This effort to dignify the vocation is prompted undoubtedly by circumstances which have pointed out the need for such regulation and the interest of the public is definitely on the side of reasonable control. To permit any one to engage in the selling of real estate or other brokerage business without lawful qualifications would demoralize the business to the detriment of the public and give rise to unscrupulous practices with consequent increased litigation.
The legislature of Kentucky has seen fit throughout the years to enact several statutes on this subject. It is the end and purpose of these statutes to clarify the method by which individuals and firms can engage in brokerage businesses. These statutes have been tested in the courts and have been declared constitutional where their constitutionality has been under attack. Shelton v. McCarroll, 308 Ky. 288, 214 S.W.2d 396.
It is a lawful exercise of the police power of the state in the interest of the health, morals, safety and welfare of the public and is not unduly oppressive upon the citizens. In other words, it meets the test of a reasonable regulation of the police power as laid down in the case of Goodpaster v. Kenton & Campbell Benev. Bur. Ass'n, 279 Ky. 92, 129 S.W.2d 1033; Ware v. Ammon, 212 Ky. 152, 278 S.W. 593.
The case of Board of Education of Ferguson Independent Graded School Dist. v. Elliott, 276 Ky. 790, 125 S.W.2d 733, dealt with the validity of an act under the police power requiring the licensing of architects. The court sustained the validity of the act as being a valid exercise of the police power. In City of Louisville v. Kuhn, 284 Ky. 684, 145 S.W.2d 851, it was said that reasonable regulations may be applied to both businesses and professions.
As indicative of the respect which the Kentucky courts have for the statutes in question I quote from the opinion of Judge Sims in Shelton v. McCarroll, supra 308 Ky. 288, 214 S.W.2d 398:
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