Levy v. Birnschein
| Decision Date | 12 January 1932 |
| Parties | LEVY v. BIRNSCHEIN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; August E. Braun, Circuit Judge.
Action by Edmond C. Levy against Alvin W. Birnschein. Judgment for defendant, and plaintiff appeals.--[By Editorial Staff.]
Affirmed.
Plaintiff claims to have been hired by the defendant to act as a real estate agent, and that prior to the commencement of this action in June, 1926, in civil court he procured a purchaser for certain property entitling him to a reasonable commission therefor. He brings this action to recover $1,570.
The defendant, who was a licensed realtor, answers the complaint denying the material allegations thereof.
Upon the trial in the civil court which occurred in November, 1929, judgment was entered in favor of the plaintiff, there being no allegation in the complaint that the plaintiff had the license required by the law and no proof thereof was offered. There was a motion made by the defendant to reopen the matter for the purpose of showing that plaintiff was not licensed as a real estate broker, or a real estate agent, under the statutes of this state. This motion was denied. Appeal was taken from the judgment there entered, to the circuit court for Milwaukee county, where the judgment was reversed, with directions to dismiss the complaint with costs. This appeal is from the judgment of the circuit court.John L. Newman, of Milwaukee, for appellant.
Harvey C. Hartwig, of Milwaukee, for respondent.
Section 136.11, Stats., became effective June 26, 1929. It requires any one acting in the capacity of a real estate broker or real estate salesman within this state who brings an action for the collection of commission or compensation for acts mentioned in chapter 136 (section 136.01 et seq.) to allege and prove that such person, firm, or corporation was a duly licensed real estate broker or salesman at the time the alleged cause of action arose.
[1] This placed upon the appellant the burden of showing that he was a duly licensed real estate salesman at the time involved in his complaint. The cause of action arose long before the section was adopted, but the case was not presented to the court and tried until after it had become the law. There is evidence that appellant acted as a real estate salesman, but this does not meet the requirements of the statute. There must be allegation and proof that one so acting was “a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose.” Failure in this is fatal to the case and a motion for directed verdict should be granted.
The complaint was prepared in 1925, the same year in which the services were rendered, and appellant contends that the section which became the law in 1929 is not applicable;...
To continue reading
Request your trial
-
Chapman Co. v. Service Broadcasting Corp., 347
...the collection of a commission pursuant to that agreement. Kemmerer v. Roscher (1960), 9 Wis.2d 60, 100 N.W.2d 314; Levy v. Birnschein (1932), 206 Wis. 486, 240 N.W. 140; Payne v. Volkman (1924), 183 Wis. 412, 198 N.W. 438; Goldsmith v. Walker Manufacturing Company (E.D.Wis.1969), 295 F.Sup......
-
Schoene v. Hickam, S-T
...99 F.Supp. 195; Benham v. Heyde, 122 Colo. 233, 221 P.2d 1078; Horwitz v. Food Town, Inc., U.S.D.C.La., 241 F.Supp. 1; Levy v. Birnschein, 206 Wis. 486, 240 N.W. 140, 141; Moore v. Burdine, La.App., 174 So. 279; Copellman v. Rabinowitz, 208 Misc. 274, 143 N.Y.S.2d 496. The reason is that va......
-
Tanenbaum v. Sylvan Builders, Inc.
...of Revicki. Nor did he allege or prove any circumstances demonstrating the inapplicability of the statute. See Levy v. Birnschein, 206 Wis. 486, 240 N.W. 140 (Sup.Ct.1932). Revicki was a New Jersey resident, the property is located here, the contract of sale was drawn and executed in this S......
-
Stoddard's Estate, In re
...in that state. The Federal appellate court merely surmised that such would be the state decision, basing its guess 8 upon Levy v. Birnschein, 206 Wis. 486, 240 N.W. 140, which, however, does not support the speculative conclusion. That was an action for a broker's commission instituted befo......