Owen v. Off
| Court | United States State Supreme Court (California) |
| Writing for the Court | SHENK; GIBSON; CARTER |
| Citation | 227 P.2d 457,36 Cal.2d 751 |
| Parties | , Blue Sky L. Rep. P 70,154 OWEN v. OFF et al. L. A. 21617. |
| Decision Date | 20 February 1951 |
Page 457
v.
OFF et al.
Rehearing Denied March 15, 1951.
[36 Cal.2d 752] Morrow & Trippet and F. B. Yoakum, Jr., all of Los Angeles, for appellant.
Gibson, Dunn & Crutcher, Ira C. Powers and Sherman Welpton, Jr., all of Los Angeles, for respondents.
Fred N. Howser, Atty. Gen., T. A. Westphal, Jr., Deputy Atty. Gen., Heller, Ehrman, White & McAuliffe, San Francisco, Adams, Duque, Davis & Hazeltine, Los Angeles, B. J. Feigenbaum, Orrick, Dahlquist, Neff & Herrington, all of San Francisco, amici curiae on behalf of respondents.
Page 458
SHENK, Justice.
In an action to recover a commission for the sale of certain securities on behalf of the defendants summary judgment was entered in their favor. The plaintiff appealed.
It is alleged in the complaint that the defendants had engaged the plaintiff to find a purchaser for and to sell, or effect the sale of, their 1275 shares of stock in the Figueroa Building Corporation, and had agreed to pay him a specified commission; that through the plaintiff's efforts a sale of the stock was effected to the Greene-Haldeman Company, but that no commission was paid. In the defendants' answer it is admitted that the plaintiff was engaged to endeavor to sell the stock owned by them. It is also alleged that an offer for the purchase of their stock had been submitted to the defendants by the plaintiff on behalf of the Greene-Haldeman Company, that the offer was refused, and that a later offer by the same company was accepted as a result of independent negotiations after the agreement with the plaintiff had expired.
The defendants' motion for summary judgment was based on their attorney's affidavit which disclosed the plaintiff's [36 Cal.2d 753] admission by deposition that he was not licensed as a broker or agent under the Corporate Securities Act. An amended answer was filed in which this fact was alleged as an additional defense on the theory that the agreement was illegal and therefore unenforceable.
In a counter affidavit on the motion the plaintiff did not deny the defendants' averments but stated that he was a duly licensed real estate broker; that in 1944 he was employed to sell the Figueroa Street Building but before he could find a purchaser it was decided for tax purposes to sell the stock in the Figueroa Building Corporation which owned the real property; that the defendants owned approximately 91 per cent of the stock; that on March 5, 1945, he was employed to sell the stock; that about May 16, 1946, he found a 'purchaser ready, willing and able to purchase' the stock; that the sale was 'a single and isolated transaction' insofar as the plaintiff was concerned since he was a real estate broker and not engaged in sales of stock or other types of securities; and that the sale of the stock was to be made by him 'on behalf of' the defendants, who were the bona fide owners thereof.
The summary judgment for the defendants was based on the foregoing facts appearing from the pleadings and affidavits.
The plaintiff does not challenge the general rule that when a statute enacted for the protection of the public requires a license for the doing of certain acts and imposes a penalty for violation, a contract to perform such acts entered into by an unlicensed person is illegal and will not be enforced. He contends that he was not required to be licensed to engage in the transaction involved.
When the events took place, the Corporate Securities Act of 1917 (Stats.1917, p. 673) and amended (Deering's General Laws, 1943, Vol. 2, Act. 3814), was in effect. The licensing requirement is found in section 6 (now sec. 25700 Corporations Code) which states: 'No person or company shall act as an agent or broker until such person or company shall hae first applied for and secured from the commissioner (of corporations) a certificate, then in effect, authorizing such person or company so to do. * * *' Section 2(a) (now sections 25005-25006 Corp.Code), defines 'agent' and 'broker.' By Section 2(a) 9 the word 'agent' includes every person or company employed or appointed by a company or broker or any other person, who either as an employee or otherwise, for a compensation, [36 Cal.2d 754] sells, offers for sale, negotiates for the sale of or takes subscriptions for any security. Section 2(a) 10 defines the word 'broker' as every person or company, other than an agent, who engages in the business of selling, offering for sale, negotiating for the sale of, or otherwise dealing in any security issued by others.
The plaintiff contends that neither an agent nor a broker is required to be licensed to effect sales of securities 'on behalf of' the owner. He relies on the following...
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All Points Traders, Inc. v. Barrington Associates, Nos. B032751
...opportunities or real estate transactions, which resulted in the transfer of corporate stock, concerned a building (Owen v. Off (1951) 36 Cal.2d 751, 227 P.2d 457), 6 a broadcasting company and its radio station (Stoll v. Mallory (1959) 173 Cal.App.2d 694, 343 P.2d 970), 7 a resort and mari......
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Lyons v. Stevenson
...transactions. (Id. at p. 502, 114 Cal.Rptr. 77.) Nationwide presents a similar fact situation as that found in Owen v. Off (1951) 36 Cal.2d 751, 227 P.2d 457, where the plaintiff was also specifically engaged to negotiate a securities From Weber, Stoll, Nationwide, and Owen, the following p......
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Fomco, Inc. v. Joe Maggio, Inc.
...Park Builders, Inc., 27 Cal.2d 687 (166 P.2d 265), which does support the Wilson ruling. Any inference to the contrary in Owen v. Off, 36 Cal.2d 751, 227 P.2d 457, is overruled. Any statements in Kennerson v. Salih Bros., 123 Cal.App.2d 371, 266 P.2d 871, or Mansfield v. Hyde, 112 Cal.App.2......
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R. M. Sherman Co. v. W. R. Thomason, Inc.
...requirement." (Vitek, Inc. v. Alvarado Ice Palace, Inc. (1973) 34 Cal.App.3d 586, 592, 110 Cal.Rptr. 86; contra, Owen v. Off (1951) 36 Cal.2d 751, 753, 227 P.2d 457.) This exception to the general rule appears to rest, at least in part, on an application of the principle expressio unius exc......
-
All Points Traders, Inc. v. Barrington Associates, Nos. B032751
...opportunities or real estate transactions, which resulted in the transfer of corporate stock, concerned a building (Owen v. Off (1951) 36 Cal.2d 751, 227 P.2d 457), 6 a broadcasting company and its radio station (Stoll v. Mallory (1959) 173 Cal.App.2d 694, 343 P.2d 970), 7 a resort and mari......
-
Lyons v. Stevenson
...transactions. (Id. at p. 502, 114 Cal.Rptr. 77.) Nationwide presents a similar fact situation as that found in Owen v. Off (1951) 36 Cal.2d 751, 227 P.2d 457, where the plaintiff was also specifically engaged to negotiate a securities From Weber, Stoll, Nationwide, and Owen, the following p......
-
Fomco, Inc. v. Joe Maggio, Inc.
...Park Builders, Inc., 27 Cal.2d 687 (166 P.2d 265), which does support the Wilson ruling. Any inference to the contrary in Owen v. Off, 36 Cal.2d 751, 227 P.2d 457, is overruled. Any statements in Kennerson v. Salih Bros., 123 Cal.App.2d 371, 266 P.2d 871, or Mansfield v. Hyde, 112 Cal.App.2......
-
R. M. Sherman Co. v. W. R. Thomason, Inc.
...requirement." (Vitek, Inc. v. Alvarado Ice Palace, Inc. (1973) 34 Cal.App.3d 586, 592, 110 Cal.Rptr. 86; contra, Owen v. Off (1951) 36 Cal.2d 751, 753, 227 P.2d 457.) This exception to the general rule appears to rest, at least in part, on an application of the principle expressio unius exc......