Knight v. Watson
| Decision Date | 10 April 1930 |
| Docket Number | 7 Div. 934. |
| Citation | 127 So. 841,221 Ala. 69 |
| Parties | KNIGHT v. WATSON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.
Action by W. T. Knight against John I. Watson. From a judgment for defendant, plaintiff appeals.
Affirmed.
Hugh Reed, of Center, for appellant.
E. O McCord & Son, of Gadsden, and Irby Keener, of Center, for appellee.
W. T Knight sued John I. Watson to recover damages for breach of a contract wherein defendant employed plaintiff to sell certain real estate, defendant agreeing to take a fixed price, and plaintiff to have any excess he might obtain as compensation. Plaintiff having found a purchaser ready, able, and willing to purchase defendant refused to perform.
Plea No. 5, to give its substance, alleges the contract was void in that plaintiff had no license as a "real estate broker" or "real estate salesman" issued by Alabama Real Estate Commission as required by Act approved August 27, 1927, Gen. Acts 1927, p. 335.
The affirmative charge was given for defendant.
The controlling questions are: (1) Was plaintiff-appellant-in violation of the above statute? (2) If so, does such statute render contracts made without a license illegal and void, defeating all recovery for commissions, etc.?
On the first proposition appellant contends he was not engaged in the business of a "real estate broker" or "real estate salesman" within the meaning of the act.
The evidence came solely from plaintiff and his witnesses. As affects this question, it tended to show: Plaintiff, Knight, was not prior to nor since this one transaction engaged in any way in the real estate business. He was engaged in logging in Etowah county. Mr. Watson, defendant, owned certain lots in the city of Gadsden. He wanted to sell them. Learning that Knight, a former acquaintance, was in the neighborhood, he sent him word by Mr. Clay to come and see him about selling the lots for him. Knight saw Mr. J. F. Slone of Gadsden about the lots, who forthwith offered to buy them at $3,500. Knight then went to see Watson, saying nothing of his interview with Slone, and got a contract to sell them at $1,250, Knight to have what he could get above that price. Knight then got a check for $100 earnest money from Slone, turned it over to Watson and made arrangement for Watson to come to Gadsden the next day, make the deed and receive payment of the balance purchase money. Then he came to Gadsden. Watson declined to go on, telling Mr. Slone that his wife was not willing to sign the deed. Mr. Slone's check was returned. Knight sues for $2,250.
A "real estate broker" and a "real estate salesman" are defined by section 2 of the Alabama Real Estate Commission Act. General Acts 1927, p. 335, Michie's Code 10112 (1) et seq. In the first part of section 2 (page 336) a real estate broker is defined as one "who, for a compensation or valuable consideration, sells or offers for sale *** any real estate *** as a whole or partial vocation." If this stood alone, it would seem to apply to engaging in the business, not to one exclusive transaction, such as this.
But the same section further declares: "One act for a compensation or valuable consideration of buying or selling real estate of or for another *** except as herein specifically excepted *** shall constitute the person *** a real estate broker or a real estate salesman within the meaning of this act."
The specified exceptions then follow, among them this (Acts 1927, p. 336):
"The provisions of this Act shall not apply to any person, co-partnership, association or corporation, who as owner or lessor shall perform any of the Acts aforesaid with reference to property owned or leased by them, or to the regular employees thereof, with respect to the property so owned or leased, where such acts are performed in the regular course of, or as an incident to, the management of such property and the investment therein," etc.
Further exceptions bear no relation to the present case, save as they disclose legislative caution in excepting cases much less likely to be held within the act.
The carefully guarded way in which the above-quoted exception is limited to regular employees performing acts in the regular course of or as incident to the management of the property seems not to take without the act a person who for profit takes occasion to engage in one act, making a sale of property as to which he has no relation as a regular employee of the owner. We must conclude the statute includes this plaintiff as a real estate broker in this transaction. The general purposes of the act, which we now discuss, seem to reinforce such view. If a revenue measure only, a privilege license tax for engaging in a business, our conclusion might be different.
A statute imposing a license tax as a revenue measure merely although declaring the doing of business...
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