Kolb v. Burkhardt

• Decision Date: 11 June 1925
• Docket Number: 42.
• Citation: 129 A. 670,148 Md. 539
• Parties: KOLB v. BURKHARDT.
• Court: Maryland Court of Appeals

129 A. 670

148 Md. 539

KOLB v. BURKHARDT.

No. 42.

Court of Appeals of Maryland

June 11, 1925

Appeal from Superior Court of Baltimore City; George A. Solter Judge.

"To be officially reported."

Suit by William A. Burkhardt against Henry Kolb. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, and PARKE, JJ.

Wendell D. Allen and Arthur W. Machen, Jr., both of Baltimore (John Henry Lewin and Armstrong, Machen & Allen, all of Baltimore on the brief), for appellant.

J LeRoy Hopkins, of Baltimore (William P. Cole, Jr., of Towson on the brief), for appellee.

PARKE J.

William A. Burkhart, the appellee, has always had his residence and place of business in Baltimore county. Quite aside from the business of storekeeping in which he was engaged, he undertook to sell a farm in Baltimore county for $40,000 net to the owner, James E. Murray, of Baltimore city, and the purchaser to pay the appellee $2,000, for his commissions. He procured in Baltimore a purchaser on these terms in Henry Kolb, the appellant, who resides in Baltimore city, and who is engaged there in the real estate business. The contract of purchase was also executed in Baltimore city, but nothing was inserted in reference to the commissions. Kolb denied that he was to pay the commissions, and he was sued by Burkhardt, who recovered. The only exception is on the prayers, and it is intended to present the single question of whether such a contract to pay commissions is rendered unenforceable by section 699A of the Acts of 1918, chapter 493.

Article 4 of the Public Local Laws of Maryland, title "City of Baltimore" contained certain sections, under the subtitle "Real Estate Brokers," which required those engaged in carrying on the business of real estate broker in Baltimore city to secure a license by paying a prescribed license fee, under penalty of a fine. Charter of Baltimore City (1905 Ed.) pp. 367, 370. This court held, in Coates v. Locust Point Co., 102 Md. 291, 62 A. 625, 5 Ann. Cas. 895, and in Walker v. Baldwin & Frick et al., 103 Md. 352, 63 A. 362, that, inasmuch as the license, which was required to be obtained, was a revenue measure, the failure to obtain a license did not make illegal a contract to pay commissions to an unlicensed broker, who was, however, subject to criminal prosecution. This entire subtitle was repealed and re-enacted by chapter 493 of the Acts of 1918. There was no material change in the original sections except the inclusion of corporations within the scope of the law, but two new sections, designated sections 699A and 699B, were added. Section 699A is the one under which the appellant argues that the contract to pay commissions in the case at bar was rendered unenforceable and void; and it is as follows:

"Section 699A. It shall be unlawful for any person, corporation or copartnership of persons to carry on the business of real estate broker in the city of Baltimore without first obtaining such license as is prescribed by section 695, of this article. Any person, corporation or copartnership who shall in Baltimore city on behalf of another for reward or remuneration of any kind undertake to purchase, sell, lease, mortgage, exchange or deal in real estate or any interest therein, shall be deemed to be carrying on the business of real estate broker within the contemplation of this article. And every contract, agreement or undertaking hereafter made by any person to pay such unlicensed person, corporation or copartnership a commission, or other remuneration of any kind for such undertaking shall be unenforceable and void." (See section 696 for another definition.)

Under the form in which the question is presented, it is conceded as proved that the vendee agreed to pay the agent of the vendor his commissions for the consummated sale of a farm in Baltimore county, and that the vendor and vendee both lived in Baltimore city where the contracts to sell and to pay commissions were made, but that the agent, who is a nonresident of Baltimore city, was not there or elsewhere engaged in the business of a real estate broker, and that his agency in the procurement of the vendee was but a single isolated transaction, and so was not in the course of a regular business carried on, or intended to be carried on, by the agent. The appellee was neither an attorney at law, nor an officer or employee acting on behalf of a licensed corporation, nor yet an employee or member of a licensed copartnership for whose benefit he was acting, so he was not within the express exemptions of section 700 of chapter 493 of the Acts of 1918, but the question remains whether or not he was within the purview of the statute.

1. Although either may conceivably be evidential on an issue of where the business is actually conducted, yet neither the residence of the real estate broker, nor the location of the subject-matter of his agency is decisive, as the real estate broker may carry on the business in Baltimore city either without residing there, or without having his brokerage transactions confined to those within the territorial limits of Baltimore city. The terms of the statute do not limit its application to those only who reside in Baltimore city. Neither does it prescribe that the business contemplated is one, in whatsoever form, method or course it may assume or be conducted, that must pertain or relate to real...