Buras v. Fidelity & Deposit Co. of Maryland, 36050.

CourtSupreme Court of Louisiana
Citation1 So.2d 552,197 La. 378
Docket Number36050.
Decision Date03 March 1941
PartiesBURAS et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND.

1 So.2d 552

197 La. 378

BURAS et al.
v.
FIDELITY & DEPOSIT CO.
OF MARYLAND.

No. 36050.

Supreme Court of Louisiana

March 3, 1941


Rehearing Denied March 31, 1941.

[197 La. 380] J. L. Warren Woodville, of New Orleans, for applicants.

P. M. Milner, of New Orleans, for respondent.

FOURNET, Justice.

Plaintiffs instituted this suit against the Fidelity & Deposit Company of Maryland, surety on the bonds furnished by Priest, Montagnet & Roshko, Inc., as a real estate broker under the provisions of Act No. 236 of 1920, to recover the sum of $1,250, with interest and attorney fees, alleged to have been paid by them to the said corporation in pursuance of a contract for the purchase of real estate, which was never delivered to them. [1 So.2d 553]

For cause of action plaintiffs alleged in effect that in the years 1927, 1928, and 1929, Priest, Montagnet & Roshko, Inc., was licensed and bonded as a real estate agent and broker to do business in the [197 La. 381] City of New Orleans in accordance with Act No. 236 of 1920, with the defendant Fidelity & Deposit Company of Maryland as surety on its bond, during which time plaintiffs paid to the said corporation the sum of $1,250 in pursuance of a contract dated August 27, 1927, whereby the corporation agreed to sell to them lots 3 and 4, Square 5, in the Roseland Park subdivision and gave them a so-called 'bond for deed' for the propety; that the said corporation, after having changed its name by amendments to the charter, first to Montagnet & Roshko, Inc., and then to Montagnet & Jones, Inc., went out of existence soon after plaintiffs had paid the last installment on the contract in February of 1929, and the whereabouts of its officers and directors were unknown to plaintiffs; that the said contract was executed and the consideration recited therin received by the said corporation, its officers and directors, with the intention of defrauding plaintiffs, for they well knew at the time that the tract of land of which the lots purchased by plaintiffs form a part was burdened with a large mortgage, making it impossible to give plaintiffs a clear title to the property; and that the said corporation and its surety, having failed to tender title or to pay the amount of the claim within 30 days after demand, plaintiffs are entitled to 10% attorney fees under the provisions of Act No. 225 of 1918, in addition to the $1,250 paid for the real estate.

The defendant in its answer denied liability for the reason that the plaintiffs dealt with Priest, Montagnet & Roshko, Inc., as [197 La. 382] the owner of the real estate and not as a real estate broker, as defined by the act. Plaintiffs then filed a motion for a judgment in their favor on the face of the pleadings and the defendant excepted thereto on the ground that plaintiffs' petition disclosed neither a cause nor a right of action. The trial judge overruled the exceptions and, on the merits, rendered judgment in favor of plaintiffs as prayed for. The defendant appealed suspensively from the judgment to this court, which appeal, on the motion of the appellee, was transferred to the Court of Appeal for the Parish of Orleans, because of lack of jurisdiction. See Buras v. Fidelity & Deposit Company of Maryland, 195 La. 244, 196 So. 335. The case is now before us on a writ of certiorari to review the judgment of the Court of Appeal reversing the judgment of the lower court and dismissing plaintiffs' suit. See 198 So. 396.

It is contended by the defendant that it became surety on the bond of Priest, Montagnet & Roshko, Inc., as a real estate broker under the provisions of Act No. 236 of 1920 and that inasmuch as plaintiffs have failed to allege affirmatively in their petition they were dealing with the corporation as a real estate agent or broker as defined by Section 2 of the act, their petition discloses neither a cause nor a right of action.

Section 1 of the act provides that after January 1, 1921, 'it shall be unlawful for any person, firm, association, co-partnership or corporation * * * to engage in the business or capacity, either directly or indirectly, of a real estate broker * * * [197 La. 383] within this State without first obtaining a license under the provisions of this Act,' and Section 16 forbids anyone to conduct a real estate agency or deal in real estate as broker or agent without first furnishing a bond, with good and solvent surety, to insure that the objects and purposes of the business shall be honestly conducted and that such person or firm will pay the damages resulting from the operation of the business. A 'real estate broker' is defined in Section 2 to be 'any person, firm, partnership, association, co-partnership or corporation, who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiate the purchase or sale or exchange of real estate, or who leases or offers to lease or rents or offers for rent, any real estate or the improvements thereon for others, as a whole or partial vocation.' In the same section it is declared that the provisions of the act shall not apply to anyone 'who, as owner or lessor, shall either individually or through an employee or representative not otherwise engaged in the real estate business perform any of the acts aforesaid with reference to property owned by them, nor shall the provisions of this Act apply to persons holding a duly executed power of attorney from the owner for the sale,...

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9 practice notes
  • Finn v. Employers' Liability Assur. Corp., General Acc., Fire & Life Assur. Corp., Intervenor, No. 9719
    • United States
    • Court of Appeal of Louisiana (US)
    • May 22, 1962
    ...Priest v. Coverdale, 204 La. 448, 15 So.2d 849; Edwards v. Daigle, 201 La. 622, 10 So.2d 209; Buras v. Fidelity & Deposit Co. of Maryland, 197 La. 378, 1 So.2d 552; State v. Scheffield, 123 La. 271, 48 So. Defendants' position is obviously predicated upon the position of the phrase 'at eith......
  • Fosscett v. Lake Charles Municipal Fire and Police Civil Service Bd., No. 85
    • United States
    • Court of Appeal of Louisiana (US)
    • November 17, 1960
    ...as to the last, the clause should be read as applicable to all.' In the case of Buras et al. v. Fidelity & Deposit Company of Maryland, 197 La. 378, 1 So.2d 552, 554, our Supreme Court followed and amplified the above rule, holding as "The universal and most effectual way of discovering the......
  • Regional Urology, L.L.C. v. Price, No. 42,789-CA.
    • United States
    • Court of Appeal of Louisiana (US)
    • September 26, 2007
    ...to a more remote antecedent is clearly required by consideration of the entire act." Buras v. Fidelity & Deposit Co. of Maryland, 197 La. 378, 385, 1 So.2d 552, 554 (La.1941); State v. Anderson, 540 So.2d 974 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989), cert. denied, 493 U.S......
  • Towne Center, Ltd. v. Keyworth, No. 92-CA-2273
    • United States
    • Court of Appeal of Louisiana (US)
    • April 28, 1993
    ...those who act as owner and are not otherwise engaged in the real estate business. Buras v. Fidelity and Deposit Company of Maryland, 197 La. 378, 1 So.2d 552, 554-55 (La.1941). Keyworth stated in his deposition that he has been in the real estate business for twenty years which predates the......
  • Request a trial to view additional results
9 cases
  • Finn v. Employers' Liability Assur. Corp., General Acc., Fire & Life Assur. Corp., Intervenor, No. 9719
    • United States
    • Court of Appeal of Louisiana (US)
    • May 22, 1962
    ...Priest v. Coverdale, 204 La. 448, 15 So.2d 849; Edwards v. Daigle, 201 La. 622, 10 So.2d 209; Buras v. Fidelity & Deposit Co. of Maryland, 197 La. 378, 1 So.2d 552; State v. Scheffield, 123 La. 271, 48 So. Defendants' position is obviously predicated upon the position of the phrase 'at eith......
  • Fosscett v. Lake Charles Municipal Fire and Police Civil Service Bd., No. 85
    • United States
    • Court of Appeal of Louisiana (US)
    • November 17, 1960
    ...as to the last, the clause should be read as applicable to all.' In the case of Buras et al. v. Fidelity & Deposit Company of Maryland, 197 La. 378, 1 So.2d 552, 554, our Supreme Court followed and amplified the above rule, holding as "The universal and most effectual way of discovering the......
  • Regional Urology, L.L.C. v. Price, No. 42,789-CA.
    • United States
    • Court of Appeal of Louisiana (US)
    • September 26, 2007
    ...to a more remote antecedent is clearly required by consideration of the entire act." Buras v. Fidelity & Deposit Co. of Maryland, 197 La. 378, 385, 1 So.2d 552, 554 (La.1941); State v. Anderson, 540 So.2d 974 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989), cert. denied, 493 U.S......
  • Towne Center, Ltd. v. Keyworth, No. 92-CA-2273
    • United States
    • Court of Appeal of Louisiana (US)
    • April 28, 1993
    ...those who act as owner and are not otherwise engaged in the real estate business. Buras v. Fidelity and Deposit Company of Maryland, 197 La. 378, 1 So.2d 552, 554-55 (La.1941). Keyworth stated in his deposition that he has been in the real estate business for twenty years which predates the......
  • Request a trial to view additional results

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