Foley v. Hassey

• Decision Date: 30 October 1939
• Docket Number: 2123
• Citation: 95 P.2d 85,55 Wyo. 24
• Parties: FOLEY v. HASSEY
• Court: Wyoming Supreme Court

95 P.2d 85

55 Wyo. 24

FOLEY v. HASSEY

No. 2123

Supreme Court of Wyoming

October 30, 1939

APPEAL from the District Court, Sheridan County; C. D. MURANE Judge.

Action by W. E. Foley against William Hassey, for real estate broker's commission. From a judgment for plaintiff defendant appeals.

Affirmed.

For the defendant and appellant, there was a brief by Louis J O'Marr and William D. Redle of Sheridan, and oral argument by Mr. O'Marr.

Real estate brokers and salesmen are required to procure licenses; they are subject to a severe penalty for violations of the statute on the subject. Sec. 97-401-412, R. S. 1931. The Wyoming statute was taken verbatim from the State of California. It has been held in that state that unlicensed real estate brokers are not entitled to recover a sale commission. Firpo v. Murphy (Calif.) 236 P. 968; Haas v. Greenwald et al. (Calif.) 237 P. 38. The foregoing case involved licensed brokers who associated themselves with an unlicensed broker. The court held that the licensed brokers could not collect for their services. The same rule was followed in Hahn v. Hauptman (Calif.) 291 P. 418; Wise v. Radis (Calif.) 242 P. 90. The admitted facts in the case at bar show that Foley, the licensed real estate broker, used one Jack Carroll, an unlicensed dealer, to make the sale, under an agreement to divide the commission. This was a clear violation of the real estate brokerage act above referred to. The evidence shows that the ranch was sold to George Cormack, but all negotiations by Foley and Carroll were with D. G. Disbrow. The case falls within the rule laid down in 9 C. J. 614 and cases cited therein. See also Neibergall v. James (Colo.) 240 P. 322; Ritch v. Robertson (Conn.) 106 A. 509; Gleason v. Nelson (Mass.) 38 N.E. 497. It may be claimed that as the real estate for the sale of which commission is claimed is located in the State of Montana, the laws of that state should govern. The laws of Montana require the employment of a real estate broker to be in writing. The evidence shows that the agreement between Foley and Hassey was oral. The following cases decided by the Supreme Court of Montana have passed on the Montana statute: Ryan v. Dunphy (Mont.) 1 P. 710; King v. Benson, 56 P. 280; Marshall v. Treise (Mont.) 81 P. 400; Newman v. Dunlevy, 149 P. 970; Skinner v. Red Lodge Brewing Co. (Mont.) 256 P. 173. The judgment of the trial court should be set aside and judgment ordered entered for appellant.

For the plaintiff and respondent, there was a brief and oral argument by H. Glenn Kinsley of Sheridan.

The trial court was justified under the evidence in rendering a judgment for plaintiff. Murphy v. Livestock Co. (Wyo.) 187 P. 187; Montgomery v. Empey (Wyo.) 253 P. 17; Western Union Tel. Co. v. Monseau, 1 Wyo. 17; Brennan v. Heenan, 1 Wyo. 121; National Bank v. Dayton, 1 Wyo. 339; Byrne v. Myers, 1 Wyo. 335; O'Brien v. Chiniquy, 2 Wyo. 56; Edwards v. O'Brien, 2 Wyo. 493; Harden v. Card, 15 Wyo. 217, 88 P. 217; Chicago, B. & Q. R. Co. v. Morris (Wyo.) 93 P. 664; Henderson v. Coleman (Wyo.) 115 P. 439; Evans v. Stone & Brick Co. (Wyo.) 130 P. 849; Hanson v. Shelburne (Wya.) 153 P. 899; Wyo. Cent. Irr. Co. v. Laporte (Wyo.) 182 P. 485; Worland v. Davis (Wyo.) 223 P. 227; Hildebrand v. C. B. & Q. R. R. (Wyo.) 13 P.2d 1081; Snowball v. Maney Brothers & Co. (Wyo.) 270 P. 167; Chapman v. Ewing (Wyo.) 24 P.2d 687; Boatman v. Miles (Wyo.) 199 P. 933; Willis v. Willis (Wyo.) 49 P.2d 670; Moses v. Harris (Okla.) 237 P. 591; Owens v. Telephone Company, 50 Wyo. 331, 63 P.2d 1006; Griffin v. Rosenblum, 46 Wyo. 40, 23 P.2d 348; 9 C. J. 614, 620; 12 C. J. S. 212. Plaintiff was a duly and regularly licensed real estate broker during all of the times mentioned in this action, in accordance with Article 4 of Chapter 97, Revised Statutes of Wyoming 1931. The authorities relied upon by appellant and cited in his brief are clearly distinguishable from the case at bar. There is no evidence that Carroll violated the Wyoming statute. He is not a party to this suit. Plaintiff established a right to recover commission on the sale without any help from Carroll. McGillivray v. Cronrath (Ida.) 279 P. 613. The sale agreement was made in Wyoming and is not governed by the Montana statute. Callaway v. Prettyman (Pa.) 67 A. 418; 86 A. L. R. 640; Henning v. Hill (Ind.) 141 N.E. 66; Aronson v. Carobine, 222 N.Y.S. 721. One who assists a licensed broker in putting through a sale is not required to be a licensed salesman, unless he acts as such within the jurisdiction. Pelton v. LeBlanc (La. App.) 126 So. 449; 30 A. L. R. 834; 86 A. L. R. 640; 118 A. L. R. 446. We submit that the decision of the lower court should be affirmed.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

The appellate proceedings in this case were instituted pursuant to the direct appeal method and seek the review of a judgment of the district court of Sheridan County. The action was one for a real estate broker's commission.

In his petition the plaintiff and respondent, Foley, relied upon an oral agreement made on or about August 1st, or September 1st, of the year 1937, with the defendant and appellant, Hassey, the pleading touching this matter reading:

"That said Defendant employed the Plaintiff as a real estate broker to find a buyer for the Defendant's said ranch and about thirty head of cattle located thereon and certain farm machinery, upon the following terms: Said Defendant expressly and orally agreed with the Plaintiff that if said Plaintiff would find a buyer for said ranch, cattle and farm machinery at a price of $ 10,000.00 net to the Defendant, that the Plaintiff might price said property up to $ 12,000.00, and that the Plaintiff should have as his commission for the sale thereof any sum in excess of $ 10,000.00 up to $ 12,000.00 for his commission and services in selling said property."

Foley alleged and claimed a commission of $ 2,000 in consequence of his performance of his part of the agreement set forth and the refusal of Hassey to pay the same.

Defendant Hassey, in the first defense of his answer, admitted that he owned the ranch, cattle and machinery referred to in plaintiff's pleading; that they were located in Big Horn County, Montana; and that he authorized "plaintiff, as a real estate broker, to sell the real estate hereinabove described and said cattle and farm machinery for the sum of $ 15,000.00 net to defendant, and thereafter reduced the sale price of said real estate and personal property to the sum of $ 12,000.00 net to defendant. The defendant admits he sold said real estate, above described, and said personal property to one George Cormack for the sum of $ 12,000.00 in cash." The first defense also interposed a general denial of the other allegations of plaintiff's pleading. The second defense of the answer alleged that the oral agreement aforesaid was not made in the State of Wyoming, but in Montana, and that the law of the State last mentioned provides that:

"The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent;

"6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or commission."

Plaintiff's reply was in form a general denial of the new matter set out in the answer.

Trial was had to the court without a jury, with the result that a general finding was made in favor of Foley, and judgment was thereupon entered against Hassey, for the amount in suit. The case is here at the instance of the latter.

The proofs were to some extent somewhat conflicting, but in view of the general finding in plaintiff's favor, his version of the contract and what was done thereunder, being supported by substantial evidence, we are obliged to take as the true history of the transaction. His testimony, so far as needful to understand the contention presented here, was substantially to the following effect:

That Foley is and was during the years 1936 and 1937 a licensed real estate broker under the laws of Wyoming and engaged in business in Sheridan; that he was acquainted with the defendant's ranch located in Big Horn County in the State of Montana, known as the "CX" ranch and as the "Craig" ranch, which comprised 4400 acres, having upon it some 25 to 30 head of cattle and a certain amount of second hand farm machinery; that in April, 1936, he met Hassey, who invited him to look over the place; that he accepted this invitation, and procured from the owner at that time memoranda and data concerning the selling points of the ranch inasmuch as Hassey had previously listed the property in Sheridan, Wyoming, with Foley for sale, upon the terms of $ 15,000 to Hassey, the understanding being that if a larger price could be obtained, it could be sold for that; that Foley endeavored thereafter, under this arrangement, to find a purchaser and took a number of prospective buyers to view the ranch, but without avail; that the last of August or the first of September, 1937, Hassey met Foley on the street in the City of Sheridan, Wyoming, and told him that he, Hassey, "would cut the price to $ 12,000, $ 10,000" to go to Hassey and Foley was to receive the difference, or $ 2,000, if he "could find a buyer"; that one Jack Carroll and a man by the name of Grant Mumper were present at this conversation. On the trial Carroll and Mumper, as witnesses for the plaintiff, corroborated Foley in this statement of the arrangement.

Foley also testified that Carroll worked for him and this fact was known to Hassey that this new agreement was satisfactory to Foley and Hassey was advised by the latter that every effort would be made "to find a buyer for him"; that...