Howard v. Simons, 15017

• Decision Date: 09 December 1955
• Docket Number: No. 15017,15017
• Parties: Blue Sky L. Rep. P 70,296 W. E. HOWARD, Appellant, v. A. Pollard SIMONS et al., Appellees.
• Court: Texas Court of Appeals

Page 478

285 S.W.2d 478

Blue Sky L. Rep. P 70,296

W. E. HOWARD, Appellant, v. A. Pollard SIMONS et al., Appellees.

No. 15017.

Court of Civil Appeals of Texas, Dallas.

Dec. 9, 1955.

Rehearing Denied Jan. 6, 1956.

Lester L. May and Joe H. Jones, Dallas, for appellant.

Bowyer, Gray, Thomas, Crozier & Harris, and J. W. Hassell, Jr., Dallas, for appellees.

DIXON, Chief Justice.

Appellant W. E. Howard, as plaintiff, sued appellees A. Pollard Simons, Guy T. Jones, W. J. Allison, A. P. Simons Mortgage Company, a corporation, and J. A. S. Corporation for $40,000 which he claims is due him as a real estate commission. Appellant alleged that he procured the sale for a consideration of $800,000 of a 75-year lease owned by appellees on downtown real estate, including a modern office building which appellees had built on the property. This appeal is from a summary judgment in favor of appellees.

The parties entered into a stipulation in which, among other facts, they agreed that (1) appellant's cause of action is based solely on an alleged oral contract; (2) appellant did not, at any time involved in this lawsuit, have a license issued under The Real Estate Dealers License Act, being art. 6573a, Vernon's Ann.Civ.St.; (3) appellant did hold a license for dealers in securities issued under the provisions of 'The Securities Act,' being art. 600a, V.A.C.S.; (4) the leasehold estate involved herein was not an oil and gas interest in said land; and (5) though appellees filed denials, there were no issues of fact involving the grounds upon which summary judgment is sought.

In 1955 the 54th Legislature amended Art. 6573a, known as 'The Real Estate Dealers License Act,' making numerous changes including changes in the numbering of the Sections and other subdivisions. However at all times material to this appeal the old law was in effect, and all citations herein will refer to the old law as it existed prior to the 1955 Amendment.

Since the enactment of Art. 6573a, V.A.C.S. it has been the law that an action for a real estate commission may not be brought or maintained in the courts of Texas if the party seeking to recover is not a licensed real estate dealer or salesman, or if the suit is based on an oral contract. See Art. 6573a, secs. 13 and 22, V.A.C.S.; Gregory v. Roedenbeck, 141 Tex. 543, 174 S.W.2d 585; Denman v. Hall, 144 Tex. 633. 193 S.W.2d 515.

In view of the stipulations between the parties and the law as above stated, it might seem that this appeal should be decided in favor of the summary judgment without further discussion. However appellant points to Art. 6573a, sec. 3(c), and vigorously contends that since he has a license as a dealer in securities he is by the express provisions of the statute itself exempt from any and all of the restrictions of 'The Real Estate Dealers License Act,' including sections 13 and 22.

The particular provisions in Art. 6573a relied on by appellant have been repealed, but were in effect at all times material to this controversy. We quote material parts of the statute: 'Sec. 3. The provisions of this Act shall not apply to, and the terms 'Real Estate Dealer' and 'Real Estate Salesmen,' as above defined, shall not include: * * * (c) Any person, partnership, or corporation who has secured a license under Texas Securities' Act, House Bill No. 521, Regular Session, Forty-fourth Legislature.'

Art. 6573a contains both remedial and penal provisions. In this case no attempt is being made to invoke the penal provisions-only the remedial provisions are before us for interpretation. Therefore we must apply the rules of liberal construction. In discussing another statute our Supreme Court has laid down the principle which must control here: "Where a statute is both penal and remedial, as where it is penal in one part and remedial in another part, it should be considered as a penal statute when it is sought to enforce the penalty, and as a remedial statute when it is sought to enforce the remedy.' 59 C.J., p. 1121, sec. 662. See also 50 Amer.Jur., p. 444, sec. 423. In this proceeding there is no effort made to invoke the penal provision of the statute and the rule of liberal construction must prevail.' Board of Ins. Com'rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803, 809.

In our opinion Art. 6573a, sec. 3(c), then in effect, did not under the undisputed facts before us, give appellant an exemption from the restrictions imposed by ...