J. B. Watkins Land Mortgage Co. v. Thetford

• Decision Date: 27 June 1906
• Citation: 96 S.W. 72
• Parties: J. B. WATKINS LAND MORTGAGE CO. v. THETFORD.
• Court: Texas Court of Appeals

Page 72

96 S.W. 72

J. B. WATKINS LAND MORTGAGE CO. v. THETFORD.

Court of Civil Appeals of Texas.

June 27, 1906.

Appeal from District Court, Dallas County; Thomas F. Nash, Judge.

Action by Henry M. Thetford against the J. B. Watkins Land Mortgage Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

W. P. Finley, for appellant. U. F. Short, for appellee.

EIDSON, J.

Appellee brought this suit in the court below against appellant to recover commissions for his services as a real estate agent in procuring a purchaser for certain real estate owned by appellant and situated in the city of Dallas. The trial before the court and jury resulted in a verdict and judgment in favor of appellee for the sum of $1,196.

Appellant's first assignment of error complains of the action of the court below in sustaining appellee's special exceptions to that part of appellant's answer which sets up as a defense to this suit the failure of appellee to pay his occupation tax as a land agent or real estate broker prior to the transaction upon which this suit is based, appellant's contention being that under the laws of Texas the failure of the appellee to pay his occupation tax and to obtain a license to pursue the business of real estate agent or broker prevents him from maintaining this suit to recover his commissions, which he alleges accrued to him in the pursuit of such business. We do not think this contention is sound. In our opintion it was not the purpose or intention of the statute providing for the payment of an occupation tax by a real estate agent or broker to make such payment a prerequisite to his right to pursue the occupation. The civil statutes providing for the tax, and the penal statutes making it a misdemeanor to pursue the occupation without paying the tax, were enacted for the purpose of providing a source of revenue for the state and the enforcement of the collection thereof. In the case of Amato v. Dreyfus, 34 S. W. 450, the San Antonio Court of Civil Appeals, in a case involving this question, uses this language, which we approve: "It is plain to us that the primary object of the statute is to provide revenue, and that it was not its purpose to repress or prohibit the several occupations it undertakes to license. The provision is that no person shall pursue any occupation unless he has such a receipt, which means that the person is prohibited, not the occupation. No consideration of public policy, nor one looking to the regulation of the business, enters into the statute in question. The purpose sought to be subserved is altogether different. It could, with as much propriety, be asserted that a merchant carrying on business under the same circumstances would not be allowed to enforce payment for goods sold, nor a banker for money loaned." And the Ft. Worth Court of Civil Appeals in the case of Railway Co. v. Carlock, 75 S. W. 931, in passing upon the question as to whether a lawyer was entitled to practice his profession without first paying the occupation tax (the statutes with respect thereto applying to lawyers as well as to land agents), held that he was, and referred to the case of Amato v. Dreyfus, supra, with approval.

Appellant's third, fourth, and seventeenth assignments of error are based upon the proposition that the purchaser procured by the appellee was not able, pecuniarily, to comply with his contract for the purchase of the land, or to respond in damages for a failure so to do, and, for that reason, appellee was not entitled to commissions for procuring such purchaser. Under a different state of case, this proposition might be correct, but the pleadings and uncontroverted testimony in this case show that the purchaser was satisfactory to appellant, and that it contracted...