Johnson v. Hulings
| Decision Date | 25 May 1883 |
| Parties | Johnson v. Hulings |
| Court | Pennsylvania Supreme Court |
May 8 1883
1. A whose business was the buying and selling of real estate for others upon commission, negotiated a sale of real estate for B., for which A. was by special agreement to receive $10,000. For the year in which said sale was negotiated A. had no license as a real estate broker. In an action by A., against B., to recover the $10,000, the jury found a special verdict subject to the question reserved, whether, upon the above stated facts, the plaintiff was entitled to recover. Held, tat A. was not entitled to recover.
2. Whenever it appears on the trial of an action of assumpsit (whether in the plaintiff's case in chief, or upon cross-examination, or by way of defense, under the plea of non assumpsit) that the plaintiff's claim rests upon an illegal foundation the court will not lend its aid to enforce it. Where, however, the illegal transaction is not involved in the case trying, but in a matter distinct and collateral a recovery may be had.
Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN JJ.
ERROR to the Court of Common Pleas of McKean county: Of January Term 1883, No. 256.
Assumpsit, by J. T. Johnson against Marcus Hulings. The narr. was in the common counts, and under a rule to file a bill of particulars, plaintiff filed the following paper:
J. T. Johnson being duly sworn saith that on or about the months of April or May, A. D. 1878, at the Collins House, Oil City, Pa., Marcus Hulings agreed with deponent that he would pay him the sum of ten thousand dollars if he would find him a purchaser for one-half his interest in about 6,000 acres of land with a drilling well thereon in McKean county, Pa., at $70,000. Subsequently, about July 1878, he raised the price to $175,000, and afterwards authorized deponent to sell or find a purchaser. In pursuance of this agreement, deponent called the attention of H. L. Taylor and John L. McKinney, of the Union Oil Company, to said property, and they negotiated for some time with Hulings for its purchase. Finally they completed the purchase of the interest through J. M. Guffey. Deponent is informed that the contract of sale was nominally made with said J. M. Guffey, but the purchase was in fact made for said H. L. Taylor and John L. McKinney and others, Guffey retaining but a small interest therein, to wit (one-eighth), and deponent avers that said sale was brought about directly by his efforts and introducing the property to the purchasers, and if the contract was made with J. M. Guffey nominally, it was in fact a purchase for the benefit of H. L. Taylor, John L. M'Kinney and others, and so distinctly understood and agreed upon between Guffey and said parties before it was made.
J. T. JOHNSON.
On the trial, before WILLIAMS, P. J., the plaintiff testified, in chief, that his business was the buying and selling real estate for other parties. He admitted, on cross-examination, that in 1878 he had no license as real estate broker.
The jury found the following special verdict:
The court afterwards entered judgment upon the reserved point in favor of the defendant, non obstante veredicto. The plaintiff took this writ of error, assigning for error the said judgment.
N. B. Smiley and M. F. Elliott, for the plaintiff in error.--The plaintiff does not claim commission as a broker, or as a real estate broker, or because he was engaged in buying and selling for others. But he does claim to recover a specific sum as compensation for services performed under a special contract. The test whether a demand connected with an illegal transaction is capable of being enforced at law is whether the plaintiff requires the aid of the illegal transaction to establish his case: Swan v. Scott, 11 S. & R. 164. Clearly in this case the plaintiff did not require such aid. To recover a compensation previously agreed upon for procuring the sale of real estate it is not necessary for the plaintiff to show he is a licensed real estate broker: Shepler v. Scott, 4 Nor. 329. When the plaintiff has made out his case without calling the illegal transaction to his aid, the defendant who has enjoyed its benefits cannot set up its illegality as a defence: Wright v. Antwerp Pipe Co., 12 Weekly Notes 325.
W. B. Chapman and John B. Chapman, for the defendant in error.--That the plaintiff was engaged in the business of real estate brokerage is clear from the evidence and the finding of the jury. The attempt to maintain an action to recover his commission for services as a broker, without having taken out a license as a real estate broker is in violation of Act of April 10th 1849, § 18. A real estate broker is one who engages in the purchase or sale of real estate as a business or occupation: Chadwick v. Collins, 2 Casey 138. A real estate broker who has not taken out a license as required by the Act of April 10th 1849, is not entitled to commission: Holt v. Green, 23 Sm. 198; Costello v. Goldbeck, 9 Phila. 159. A contract in violation of a statute is absolutely void: Thorne v. Travellers' Ins. Co., 30 Sm. 15; Scott v. Duffy, 2 Harris 20; Thomas v. Brady, 10 Barr 170; Mitchell v. Smith, 1 Binney 110. In Swan v. Scott, 11 S. & R. 164, and Wright v. Pipe Co., 12 W. N. C. 325, cited on the other side, the illegal act was held to be a good consideration for a new promise, on which an action was maintainable. But here the plaintiff is not within that rule, for he seeks to recover on the original illegal contract.
In this case, by a special verdict, the jury found that the plaintiff was, in the year 1878, the year of the transaction involved in this controversy, and also for some years before and after that period, engaged in the business of buying and selling real estate for others upon commission. That in that year he had no license or commission as a real estate broker and that it was during this time that he negotiated a sale of real estate to H. L. Taylor and company for the defendant for which he was to receive $10,000. On looking over the evidence we find that this verdict was founded upon the testimony of the plaintiff himself. In answer to the question, " What is your business?" he answered, " I am buying and selling oil lands for other parties, and real estate." He also said he had been engaged in that business about eight years. He further, in answer to a question put on part of the defence, admitted that he had not taken out license for the year 1878. There is therefore no doubt but that the plaintiff was engaged in the purchase and sale of real estate as a business, and so came within the definition of " real estate broker," as found in the case of Chadwick v. Collins, 2 Ca. 138. Such being the case, the plaintiff was, by virtue of the 18th section of the Act of the 10th of April 1849, brought within the provisions of the Act of May 27th 1841, and was subject to the penalty therein prescribed in case of a violation of those provisions. The result follows that Johnson, in the transaction in hand, stands in the position of a real estate broker who seeks to enforce a contract which, under the statute, he had no right to make, and by the making of which he subjected himself to the...
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