Owens v. Capri

• Citation: 65 Wyo. 325,202 P.2d 174
• Decision Date: 25 January 1949
• Docket Number: 2406
• Parties: W. R. (Bill) OWENS, Plaintiff and Respondent, v. TONY CAPRI, Defendant and Appellant
• Court: United States State Supreme Court of Wyoming

202 P.2d 174

65 Wyo. 325

W. R. (Bill) OWENS, Plaintiff and Respondent, v. TONY CAPRI, Defendant and Appellant

No. 2406

Supreme Court of Wyoming

January 25, 1949

APPEAL from District Court, Sheridan County; V. J. TIDBALL, Judge.

Action by W. R. (Bill) Owens against Tony Capri to recover an agreed compensation pursuant to an oral agreement whereby defendant employed plaintiff to assist him in acquisition of a ranch. From the judgment, defendant appeals.

Reversed with instructions.

For Plaintiff and Respondent the cause was summitted on the brief and oral argument of John F. Raper, Jr. of Sheridan, Wyoming.

POINTS OF COUNSEL FOR APPELLANT.

The essential feature of a broker's employment is to bring the parties together in an amicable frame of mind, with an attitude toward each other and toward the transaction in hand which permits their working out the terms of their agreement. They may reach that agreement without his aid or interference. This does not mean that the broker has not negotiated the transaction. He does that when he builds up in the or isolated case; but a few statutes are so worded and construed as to apply to a single act or transaction. 12 C J. S. 156.

If the statute is designed solely to raise revenue and not for the purpose of rendering their calling otherwise unlawful, it is generally held that the right of a broker to recover on an express contract for commissions is not defeated by his failure to take out a license thereunder, even though the statute is expressly prohibitory and imposes a penalty for violation. If the object of the statute is to protect the public by insuring the honesty and good behavior of brokers that is, if it is a police regulation, there can be no recovery if a license has not been procured prior to the rendition of the services sued for. 8 A. J. 1076.

No principle of law is better settled than that a party to an illegal contract or an illegal transaction cannot come into a court of law and ask it to carry out the illegal contract or to enforce rights arising out of the illegal transaction. He cannot set up a case in which he necessarily must disclose the illegal contract or the illegal transaction as the basis of his minds of the parties a desire to do the business. Baird v. Krancer, 138 Misc. 360, 246 N.Y.S. 85.

Most statutes requiring a license to engage in the brokerage business do not apply so as to require a license and defeat recovery of compensation by an unlicensed person, where he is engaged in some other business and acts as broker only in a single transaction claim. Wise v. Radis, 74 Cal.App 765, 242 P. 90.

Where the broker is employed as the agent of either party, so that that party relies on him to secure the best bargain possible then the general rule forbidding a secret double employment applies . . . and the broker cannot recover commissions from both parties to the transaction, unless they have knowledge that he is acting for both and consent thereto expressly or impliedly. 12 C. J. S. 165.

For Defendant and Appellant the cause was submitted on the brief of H. Glenn Kinsley and James Munro both of Sheridan, Wyoming and oral argument by Mr. Munro.

POINTS OF COUNSEL FOR RESPONDENT.

The findings of the lower court will not be disturbed where there is substantial evidence in the record to support it. Yount vs. Strickland, 17 Wyo. 52, 101 P. 942; Reardon v. Horton, 16 Wyo. 363, 94 P. 448.

If it were not for the provision of the law making one transaction the doing of business, it could not be said that making one sale would be a violation, and that provision must be construed with the phrase "as whole or partial vocation". So construed, it is clear that the act was intended to apply to persons holding themselves out to the public as real estate brokers and not to require every person specially employed for a specific transaction to take out a license, under pain of incurring severe penalties and loss to commissions. Florida v. Fetty, 15 Fed. (2nd) 942.

Owen's work for Capri cannot be considered real estate brokerage. The mere act of negotiating this one sale, so long as the plaintiff was not in the business of selling or negotiating sales of real estate, did not constitute him a real estate broker, or bring him within the purview of the ordinance. O'Neill v. Sinclair, 153 Ill.525, 39 N.E. 124.

A storekeeper who in a single isolated instance sells a farm for commission, with no intention to engage in any manner in any other transaction with respect to any form of realty, is not carrying on the business of a real estate broker within the terms of a statute requiring brokers to be licensed. Kolb v. Burkhardt, 148 Md. 539, 129 A. 670; Morris v. O'Neill, 239 Mich. 663, 215 NW 8.

RINER, Chief Justice. KIMBALL, J. and BLUME, J. concur.

OPINION

RINER, Chief Justice.

Direct appeal proceedings bring a judgment in favor of the plaintiff entered by the District Court of Sheridan County here for review. The parties will be referred to as aligned in that court, W. R. (Bill) Owens, the respondent here and plaintiff below and Tony Capri, defendant below and appellant here, or by their respective surnames.

The nature of the action may perhaps best be presented by giving a brief summary of the pleadings in the case which so far as the controlling question herein is concerned may be described in substance as follows: Plaintiff's petition states that the plaintiff and defendant entered into a verbal agreement whereby the latter employed the former for the agreed compensation of $ 500 to assist the defendant in the acquisition of a ranch in Sheridan County Wyoming; that the plaintiff rendered services to the defendant in the defendant's negotiations for the IXL ranch in Sheridan County from one Harrison, the owner thereof; that this purchase was consummated by the defendant about August 16, 1946 with plaintiff's help and assistance in accord with the agreement mentioned above; that plaintiff in fully performing his part of said contract, made and paid for frequent long distance telephone calls, paid expenses for auto transportation, assisted in negotiations and attended conferences between the parties; and that though demanded from him, the defendant refuses to pay plaintiff the agreed compensation. Judgment for the sum above mentioned is accordingly prayed and also for plaintiff's expenses and costs.

Defendant's answer was in large measure a general denial of the allegations of plaintiff's petition. However, a second defense was interposed in defendant's pleading to the effect that any services rendered by plaintiff in connection with the negotiations which occurred between defendant and Harrison concerning the sale of Harrison's real estate known as the IXL ranch aforesaid to defendant were services rendered relative to the purchase or sale of real estate as defined by Section 97-402, W. R. S. 1931 (Section 37-2102 W.C.S. 1945) and plaintiff acted in said matter as a real estate broker within the meaning and definition of a real estate broker as set forth in Article 4 of Chapter 97 of W. R. S. 1931 (Article 21 of Chapter 37 W.C.S. 1945); that the plaintiff:

"was not, at the time of said negotiations, and is not now and never has been, a licensed Real Estate Broker, as required by the Statutes of the State of Wyoming and any services rendered by the Plaintiff as such Real Estate Broker, in connection with said transaction were unlawful and in express violation of the Statutes of the State of Wyoming."

Defendant prayed that plaintiff take nothing by his action and that costs be allowed the defendant.

Plaintiff filed a reply which denied all new material in this answer but demurred to defendant's second defense hereinabove described. This demurrer, another judge sitting, was overruled and thereafter upon leave being given, plaintiff filed a further reply which denied the allegations of the second defense aforesaid.

The case was tried to the court and judgment for the plaintiff was awarded as already stated and wherein the issues were found generally in his favor. The judgment given was for the amount claimed by plaintiff and costs.

At the outset of our discussion of the legal principles which we deem should control the disposition of this case, without reviewing the evidence, we take it as established by the general finding of the trial court that plaintiff had a contract with defendant as claimed and pleaded by the former and that the services called for on plaintiff's part by that contract were duly performed by him and that defendant refused to pay plaintiff the agreed compensation. The testimony was conflicting on most of these matters but under principles of appellate procedure too well established and too familiar to require citation of authorities, we are obliged to take the trial court's view of them. It is conceded also that plaintiff during all the times covered by the transaction involved herein had no license as a real estate broker as required by Article 21 of Chapter 37 W.C.S. 1945.

Plaintiff's regular vocation was that of a cattle buyer and in the course of that pursuit he had necessarily become familiar with different ranches and farm properties in Sheridan County Wyoming. Defendant being aware of this fact requested plaintiff to aid him in purchasing a ranch in that county. Harrison's IXL ranch was brought to defendant's notice by plaintiff and he (Harrison) and defendant, assisted by plaintiff, in the manner as alleged in plaintiff's initial pleading, began and completed negotiations which resulted in the purchase by Capri of that ranch for $ 128,000, this price including also one hundred sixty head of cattle located on said ranch. So far as appears by this record, this is the only transaction of this character in which Owens...