Benham v. Heyde
| Decision Date | 24 July 1950 |
| Docket Number | No. 16042,16042 |
| Parties | BENHAM v. HEYDE. |
| Court | Colorado Supreme Court |
E. V. Holland, Denver, for plaintiff in error.
John E. Fitzpatrick, Denver, for defendant in error.
Action begun December 16, 1946, to recover commission for sale of real estate. There is involved the interpretation of an act of the general assembly, approved April 20, 1925, considered in the light of the fact that section 4 of the act was repealed in 1927, and sections 1 and 2 thereof were amended in 1929. Chapter 147, page 423, 1925 act, and chapter 149, pages 582, 528, 1927 and 1929 acts. The title of the act reads as follows: 'To define the terms 'real estate broker' and 'real estate salesman'; to regulate and license real estate brokers and real estate salesmen as herein defined: to create a real estate brokers board: to create a real estate license fund and to provide for the collection and disposition thereof; and providing penalties for violations hereof.'
Defendant in error (plaintiff below), while frankly alleging that 'he is not a licensed real estate broker and is not engaged in the selling of real estate,' nevertheless sought and recovered judgment against plaintiff in error (defendant below) in the sum of $2225, as and for commission allegedly earned by him pursuant to verbal agreement made December 8, 1945, in the matter of the sale of 'certain farm lands owned by' defendant in Adams county. Whether there was such an agreement--denied by defendant, and resolved affirmatively below--is not of importance except that by such resolution, which we are not persuaded to disturb, the competency of plaintiff to maintain the action, challenged below and here, became, and continues to be, the question. The challenge in the regard mentioned, timely and adequately interposed below, was and is predicated on the provisions of article 4, subdivision 2, and particularly sections 28 and 29, chapter 15, '35 Colorado Statutes Annotated, Laws of the several sessions cited above, effective as to all dates important to this inquiry.
The genesis of the law of defendant's reliance, was chapter 147, legislative session of 1925. We quote from sections 1, 2, 4 and 21 of the act, some words of which for emphasis and convenient reference we italicize. ' 35 C.S.A. c. 15, § 46.
In 1927, section 4 of the act was formally repealed in its entirety. S.L. '27, p. 582, § 1. In 1929, the general assembly amended sections 1 and 2 of the 1925 act, section 1 in details unimportant here, and section 2 in two major particulars, first, by eliminating certain words of the original act, that is to say, 'as a whole or partial vocation', thereby making the inhibitions thereof applicable to all persons of whatever calling or none. Second, by substituting for the word 'others,' in behalf of whom the service in contemplation was forbidden, which, perhaps, in its plural form might be construed as not applicable to a single transaction, as here, the words 'another or others,' and thus the ligislature singularized the proscription in its application. S.L. '29, c. 149, §§ 1 and 2, '35 C.S.A. c. 15, §§ 28 and 29.
It is not contended that plaintiff was engaged in the 'business of * * * real estate broker,' proscribed in section 1 of the act, which is emphasized in his complaint and testimony, but that he was acting in that 'capacity' in the transaction upon which he bases his claim, not less plainly inhibited, unmistakably appears. He testified that defendant was to pay him a 'commission' which, as he further testified, was to be 'five per cent.' The purchaser of the land involved, a witness for plaintiff, testified that plaintiff 'was acting in the capacity of a real estate broker in the transaction.' Plaintiff's wife, who said she was present when her husband and defendant discussed the matter of commission testified that plaintiff said to defendant, the witness continued, 'that she was to pay a commission.'
After considerable discussion as to whether plaintiff's claim was on contract or quantum meruit, in which both counsel and the court participated, the court required that plaintiff elect in relation thereto, which was done by amendment to the complaint in the following language, that is to say: 'Defendant then requested the plaintiff to obtain for her a purchaser, and that in event he did so she would compensate him five per cent for his services upon the $45,000.' Based thereon, which, as we are constrained to think, conformed to what already had been made to appear, the court and counsel proceeded on the theory that plaintiff, not licensed thereunto, and not engaged in the 'business of real estate broker,' who, nevertheless, was acting in the capacity thereof and thereby, as claimed by him, became the agent of defendant, as and for the consideration of a regular real estate commission of five per cent, precisely as he would have claimed had he been a licensed broker. It would be difficult, we surmise for one confessedly not licensed, to have fashioned his actions and claims more nearly in pattern of brokers licensed pursuant to the statute, than was made manifest by plaintiff's own showing here.
Shortly after plaintiff's election to rely upon a commission agreement, as already stated, and when he had concluded the presentation of his case, defendant moved dismissal of the complaint, on the ground, that, since plaintiff is not a licensed real estate broker, formally pleaded by him, nevertheless, in the matter of the claimed services he was 'acting in the capacity of a real estate broker,' clearly, as said, inhibited by the statute. The court, although evidently proceeding with misgivings, denied the motion, but paused to observe: continued the court, 'that the acts of the plaintiff come within the provisions of the act of 1929, which forbids such acts by the plaintiff.' The trial judge's further remarks had to do with Schwartz v. Weiner, 94 Colo. 251, 30 P.2d 1110, which as he observed, was 'decided in 1934, and some five years subsequent to the 1929 session laws, though it did not mention or pay any attention to the 1929 Act, which clearly prohibits, quoting from the opinion, 'any person to engage in the business or capacity of real estate broker in this state without first having obtained a license from the secretary of state.'' Notwithstanding the foregoing, clearly indicating that the judge was covinced the inhibitions of the act of 1925, as changed by the repeal of section 4 in 1927, and as amended in 1929, worked plaintiff's undoing, still, and solely because of the Schwartz-Weiner case, which presently will have our attention, the judge felt that he 'must deny the motion to dismiss.'
Whatever elasticity may have attended the original or 1925 act, by the repeal of section 4 thereof in 1927, and the amendments of sections 1 and 2 in 1929, already stated and analyzed, at the time of the several occurrences involved in the present inquiry, as seems clear, the applicable statutory law was to the effect that 'any person,' who, 'without having obtained a license as' in the act 'provided,' consummates a sale of real estate for 'another' (the precise status of plaintiff) becomes a 'real estate broker,' and amenable to the penalties involved. Hence, also, to the rule of law controlling in such situation, which, as we are persuaded, precludes plaintiff in his quest for recovery. To hold otherwise, as we are further persuaded, would be to ignore one of our own well-stated pronouncements, that is to say: 'A fundamental rule of construction requires us to attribute to this change of language...
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