Bowman v. Myers

• Decision Date: 14 February 1928
• Docket Number: No. 50.,50.
• Citation: 217 N.W. 916,241 Mich. 642
• Parties: BOWMAN v. MYERS et al.
• Court: Michigan Supreme Court

241 Mich. 642

217 N.W. 916

BOWMAN

v.MYERS et al.

No. 50.

Supreme Court of Michigan.

Feb. 14, 1928.

Error to Circuit Court, Isabella County; Ray Hart, Judge.

Action by Jesse A. Bowman against Charles J. Myers, William J. Cooper, and Hugh Watson, composing the firm of Myers, Cooper & Watson, in which defendants claimed affirmative relief. To review an adverse judgment, plaintiff brings error. Affirmed.

Plaintiff resides at Milwaukee, Wis. He was the owner of a large and valuable farm in Isabella county. Defendants were partners, but had not filed with the county clerk the certificate required by Act 164, Public Acts 1913 (section 6354 et seq., C. L. 1915), although after the transaction here involved and before this suit was brought they did comply with its provisions (see Act 265, Public Acts 1919). They were authorized by the Michigan Securities Commission to act as real estate brokers under the provisions of Act 306, Public Acts 1919. Defendants seem to have looked after plaintiff's farm for him, collecting rents, selling produce, etc. Plaintiff was desirous of selling his farm, and on July 26, 1924, wrote defendant:

‘What will be your charges to assist me in the sale, by taking charge of prospective buyers and showing them the farm and use your efforts to effect a sale?’

Defendants replied offering to perform the services for 1 per cent. of the sale price, or $25 per prospect sent to them. Plaintiff replied:

‘I accept your proposition of 1 per cent. on any sale or trade I make on the Michigan farm.’

We need not quote further from the correspondence, as it is conceded that the statute of frauds is satisfied.

In December following, plaintiff entered into an agreement with one Panseram to sell him the farm for $50,000, and the contract was placed in escrow subject to Mr. Panseram's examination of the farm. He came on with a letter of introduction to defendants and was shown the farm by them. He was apparently satisfied, and shortly afterwards plaintiff wired and also wrote defendants that the farm was sold. The contract was delivered from escrow, and Panseram moved on the farm. In midsummer plaintiff claims to have learned that Panseram had made fraudulent representations as to his financial ability, and plaintiff repossessed himself of the farm. It is conceded that defendants knew nothing of such misrepresentations and had nothing to do with them. Defendants were permitted to offset their commission in this suit brought against them, and their right so to do is the only question presented on this record, all other items of the dealings of the parties being agreed upon.

Argued before the Entire Bench.

Dodds & Dodds, of Mt. Pleasant, for appellant.

Virgil W. McClintic, of Mt. Pleasant, for appellees.

FELLOWS, J.

(after stating the facts as above). Plaintiff's counsel does not contend that defendants' failure to comply with Act 164, Public Acts of 1913, makes their contract with plaintiff invalid. They concede, and properly so, that the amendment to the act (Act 265, Public Acts 1919) permits defendants to assert their contract, provided, as was here done, the proper certificate was filed before suit was brought. What they contend is this: That the issuance of a license to them as brokers by the Michigan Securities Commission, acting under Act 306, Public Acts 1919, without their compliance with another act, the act of 1913, was invalid, hence they have no valid license as brokers and any contract they entered into as such was in the face of a penal statute and void, and that the validity of defendants' license as brokers is open to assault for this reason in this proceeding. The defendants had been authorized by the Michigan Securities Commission to act as real estate brokers, and held their licenses as such for all the period during which plaintiff had dealings with them as such. We do not think the propriety of the issuance of such license is open to collateral attack. In the absence of any evidence or claim to the contrary, we must assume that the Michigan Securities Commission did its duty and acted upon a proper application before it. Upon principle the case of International Harvester Co. v. Circuit Judge, 163 Mich. 55, 127 N. W. 695,30 L. R. A. (N. S.) 580, Ann. Cas. 1912A, 1022, is analogous. In that case the Harvester Company, a foreign corporation, had been authorized by the secretary of state to do business in...