Hunter v. Cunning

• Decision Date: 30 October 1944
• Citation: 154 P.2d 562,176 Or. 250,157 P.2d 510
• Parties: HUNTER <I>v.</I> CUNNING
• Court: Oregon Supreme Court

176 Or. 250

154 P.2d 562

157 P.2d 510

HUNTERv.

CUNNING

Supreme Court of Oregon.

Argued at Pendleton October 30, 1944.

Reversed December 19, 1944.

Rehearing denied April 3, 1945.

Brokers

1. The regulation of real estate brokers is a reasonable exercise of the police power.

Brokers

2. Statutes regulating business of real estate brokers are intended for the protection of the public or for the promotion of the public welfare and are not revenue acts.

Brokers

3. In enacting the real estate brokers act, it was the legislative intent to render void all contracts entered into in contravention of its terms.

Brokers

4. Under provision of real estate brokers act that no person shall maintain action for compensation without alleging and proving that he was a duly licensed broker at time alleged cause of action arose, the word "arose" is not synonymous with the word "accrued".

Action

5. A "cause of action" as referring to pleading and proof is defined as the facts upon which plaintiff's right to sue is based and upon which defendant's duty has arisen, coupled with the facts which constitute the defendant's wrong.

Brokers

6. Under real estate brokers act provision that no person shall maintain action for compensation without alleging and proving that he was a licensed broker "at the time the alleged cause of action arose", the quoted phrase means at the time or throughout the period when the broker performed the services which culminated in the accrual of his cause of action.

Brokers

7. Provision of real estate brokers act requiring broker to allege and prove that he was duly licensed when his cause of action arose is not a limitation upon those provisions which prohibit a broker from doing business without a license, but rather imposes an added burden upon those who may have otherwise complied with the requirements of the act considered in its entirety.

Brokers

8. Where broker was authorized only to procure a purchaser, but was not required to consummate a sale, and all services in connection with procuring purchaser were performed prior to

time broker obtained license, broker was not licensed "at time cause of action arose" as required by statute in order to maintain action for commissions.

ON PETITION FOR REHEARING

Statutes

9. In construction of a statute, where there are several provisions or particulars the court must, if possible, give effect to all of them.

Brokers

10. The Real Estate Brokers Act, interpreted in the light of its purpose of protecting the public, prohibits an unlicensed person both from entering into an agreement to act as a real estate broker and from performing such an agreement.

Contracts

11. The rule which avoids a contract made in contravention of a statute will be applied when the statute is intended for protection of public against those evils which society must be guarded against by protective legislation.

Brokers

12. Where contract constituted a listing of real property for sale with broker who did not have a license, the contract was illegal under the Real Estate Brokers Act and could not support an action to recover a broker's commission.

Brokers

13. Where contract listing real estate for sale was illegal because broker did not have a license, the illegal contract could not afterwards be ratified.

Brokers

14. Under statute providing that no person shall maintain an action for compensation as a real estate broker without alleging and proving that he was duly licensed at time the alleged "cause of action" arose, the quoted phrase means the facts alleged in the complaint, which constitute the entire transaction out of which plaintiff seeks to recover.

Brokers

15. Contract employing broker to procure a purchaser for certain timberland, and agreeing to pay a commission on land sold through broker's efforts or to any purchaser procured by broker, did not authorize broker to negotiate or consummate sale but merely to procure purchaser with whom owner should consummate a sale.

                  See 8 Am. Jur. 993, 997
                  12 C.J.S., Brokers, §§ 7, 67
                

Before BELT, Chief Justice, and ROSSMAN, BAILEY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Deschutes County.

R.H. GREEN, Judge.

Action by J.N. Hunter against Max A. Cunning, administrator of the estate of Emily F. Gilchrist Wells, deceased, to recover real estate broker's commissions. Verdict and judgment for plaintiff, and defendant appeals.

REVERSED. REHEARING DENIED.

George H. Brewster, of Redmond, and A.S. Cooley, of Pendleton, for appellant.

R.R. Bullivant, of Portland (De Armond & Goodrich, of Bend, and Pendergrass, Spackman & Bullivant, of Portland, on the brief), for respondent.

HAY, J.

This is an action by a real estate broker to recover a commission, in which plaintiff had a verdict and judgment for $29,062.50, with interest. The amended complaint alleged as follows:

Mrs. Emily F. Gilchrist Wells was the owner of a large tract of timber-land in Deschutes County, Oregon, comprising approximately two hundred million feet of merchantable pine, having a value in excess of $500,000. Her husband, Roe Wells, was her agent in the handling of her timber-land and in negotiating sales thereof. On or about October 15, 1938, Mrs. Wells and her said agent, by written agreement, employed the plaintiff Hunter to procure a purchaser for her timber-lands, or portions thereof, and agreed to pay him a commission of five per cent. During December 1938, Hunter obtained an offer from Brooks-Scanlon Lumber Company, a corporation, (hereinafter called Brooks-Scanlon), by which it agreed to pay for said timber-lands $3.50 per thousand, upon an estimated stumpage of 180 million board feet of ponderosa pine, amounting to the sum of $635,000. He promptly transmitted this offer to Mrs. Wells and her said agent, in New York, and thereupon they rejected it. Notwithstanding such rejection, however, Mrs. Wells and her said agent continued negotiations with Brooks-Scanlon, and, on or about May 5, 1939, sold and conveyed the property to said corporation for the sum of $590,000, receiving at that time the sum of $100,000 in cash, the remainder of the price being payable in ten equal annual installments, evidenced by the buyer's promissory notes and secured by a mortgage upon the property. The sale was consummated solely through the employment and efforts of Hunter as the procuring cause thereof, and he fully performed his contract of employment, except that Mrs. Wells, in an effort to escape payment of Hunter's commission, prevented him from fully consummating the sale, by pretending to reject the offer obtained by him, and secretly, without his knowledge, effecting a sale of the property to Brooks-Scanlon, at a price and on terms substantially equal to or less than those negotiated by Hunter. Under the circumstances, he claimed to be entitled to a commission of $31,750 on the sale. Mrs. Wells died September 5, 1941, and the defendant, Max A. Cunning, is administrator of her estate in Oregon.

The defendant demurred, on the general ground that the amended complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and he answered by general denial, save that he admitted that Mrs. Wells owned timber-lands having a value in excess of $500,000, which had growing thereon more than 400,000,000 feet of merchantable pine timber.

Plaintiff thereafter moved for permission to amend his amended complaint further, so as to allege that the property for which he was employed to find a purchaser was all of the timber-lands then owned by Mrs. Wells in the counties of Jefferson and Deschutes, in Oregon, or portions thereof, and that the offer which he procured from Brooks-Scanlon was to purchase a portion of such timber-lands, "said portion being known and identified as the `South Tract' and comprising all the timberlands then owned by Emily F. Gilchrist Wells, in Township 17 S.R. 10 E.W.M.; Township 17 S.R. 11 E.W.M.; Township 18 S.R. 11 E.W.M.; Township 18 S.R. 10 E.W.M.; all in Deschutes County, Oregon," and that, at the time the cause of action herein involved arose, the plaintiff was a duly licensed real estate broker in the state of Oregon.

The court apparently made no order upon the motion to amend, and the case came on for trial. At the opening of the trial, plaintiff was permitted to amend his amended complaint, by interlineation, in the respects above mentioned, and, at the conclusion of taking of testimony, but before the cause was submitted to the jury, by leave of the court, over defendant's objection, he was permitted to file a second amended complaint, substantially in the language of the amended complaint, as amended by interlineation as aforesaid. It was stipulated that the defendant's demurrer to the amended complaint, and the court's ruling thereon, should be considered as applying to the second amended complaint also, and, further, that defendant's answer to the amended complaint should be considered as his answer to the second amended complaint.

It appears from the evidence that Hunter has resided at Bend, Oregon, since 1902, and for about thirty-eight years has been engaged in the business of cruising and selling timber. In February, 1938, he wrote Mrs. Wells, asking permission to try to interest one Miller in the purchase of a portion of her timber-lands. Correspondence followed, between Mrs. Wells and her husband, Roe Wells, assuming to act for her, on the one hand, and Hunter on the other. Thereby, Hunter was authorized to, and did, negotiate a sale of some 2,000 acres of timber-land to Hitchcock Lumber Company, in respect of which Mrs. Wells agreed to and did pay him a commission of five per cent on the sale price. The Hitchcock sale was consummated October 15, 1938. Hunter was not licensed as a real estate broker in Oregon at any time covered by the various transactions in this paragraph mentioned, until December 5, 1938. Further correspondence followed, by which...