Peterson & Vogt v. Livingston, 42904
| Decision Date | 22 July 1980 |
| Docket Number | No. 42904,42904 |
| Citation | 295 N.W.2d 106,206 Neb. 753 |
| Parties | PETERSON & VOGT, a partnership, Appellees, v. Claude J. LIVINGSTON, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Statute of Frauds: Real Estate Brokers: Promissory Notes. While an oral promise to pay a commission to a broker for the sale of real estate is unenforceable because of the statute of frauds so long as it rests in parol, it constitutes a sufficient consideration to support a promissory note given in payment of such commission.
2. Statute of Frauds: Real Estate Brokers. Delivery of a promissory note to pay a commission for the sale of real estate amounts to an effective renouncement of the benefit of the protection afforded by the statute of frauds, and delivery of the note transforms the agreement to pay a real estate commission from an unenforceable obligation into a collectible debt.
3. Real Estate Brokers: Promissory Notes: Broker's Licenses. A promissory note given by a vendor of real estate to a corporate real estate broker in Nebraska and accepted by the broker in payment for brokerage services previously rendered in the sale of certain real estate located in Colorado, which the vendor subsequently acknowledged, reaffirmed, and promised to pay for such services, is supported by a valid and lawful consideration and action may be brought upon said note and recovery had thereon, notwithstanding the fact that, at the time of the transaction in question, said corporate broker did not hold a valid and current Nebraska real estate broker's license as required at that time by Neb.Rev.Stat. §§ 81-885.06 and 81-885.16 (Reissue 1976), but all of the officers and salesmen of said corporation involved in the transaction held current Nebraska and Colorado broker's licenses, and the corporation also held a current Colorado corporate broker's license.
Arlan G. Wine, McCook, for appellant.
Richards & Richards, Chappell, for appellees.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.
Defendant below, Claude J. Livingston (hereinafter referred to as "Livingston"), appeals to this court from a judgment entered by The District Court for Hayes County, Nebraska, awarding Peterson & Vogt (hereinafter referred to as "Partnership") the sum of $12,140 in its action to recover amounts allegedly due it on two promissory notes executed by Livingston and payable to Peterson & Vogt, Inc. (hereinafter referred to as "Corporation"). We affirm.
By way of background, it appears that in 1946 a real estate brokerage partnership was formed by Chester A. Peterson (hereinafter referred to as "Chester") and Leonard A. Vogt (hereinafter referred to as "Vogt"). Chester secured a Nebraska real estate broker's license in 1939; and Vogt became a licensed real estate broker in Nebraska in 1946, and in Colorado in 1964. The partnership license was kept current, and was in effect at all times involved in this litigation from the date of their issuance until the date of the trial. Harold C. Peterson (hereinafter referred to as "Harold"), Chester's son, joined the Partnership and became a partner therein in 1954. Harold was licensed as a real estate broker in Nebraska in 1955, and was also licensed in Colorado as a real estate broker in 1964. Vogt's and Harold's licenses were kept current and were in effect until the time of the trial. The Partnership secured a real estate broker's license in Nebraska in 1947, and was registered as a licensed broker in Colorado in 1964.
On December 31, 1972, the Partnership, which at that time consisted of only Harold and Vogt, for tax reasons changed the form of their business enterprise to a corporate entity, and became Peterson & Vogt, Inc. The Corporation was registered in Colorado as a licensed broker from January 1, 1973 until January 12, 1976, but apparently did not receive a broker's license in Nebraska until July 2, 1974, the license to the Partnership being in effect until that date. On January 1, 1976, the Corporation again became a partnership, and remained such until the time of trial.
On February 11, 1974, after the Partnership became incorporated, but prior to its receipt of a corporate broker's license in Nebraska, Livingston and Harold had conversations with regard to listing and sale of certain land in Colorado which was owned by Livingston. Although there is a conflict in the evidence as to which party initiated the conversations, it is clear that the parties agreed that the sales commission for the sale of the land was to be $10,000 in the event that the land sold for $300 per acre. No written listing agreement was entered into by the parties, but the land was advertised by the Corporation and was subsequently sold for $300 per acre. All conversations with regard to the sale of the land were held in the state of Nebraska, as was also the preparation and execution of the deeds conveying the property. The closing of the transaction, however, occurred in Colorado on April 9, 1974.
For reasons not revealed in the record, the commission to the Corporation on the sale of the property was not deducted from the monies paid to Livingston at the closing. However, on that date, the Corporation requested Livingston to execute a promissory note to it for the amount of the commission on the transaction, but Livingston chose not to do so. Subsequently, however, after conversations between them, on August 20, 1974, Livingston executed two promissory notes to the Corporation for the amount of $5,000 each, the first note bearing a due date of October 20, 1974, and the second note bearing a due date of April 20, 1975. When, as stated above, the Corporation was again changed to a partnership entity, the notes, being assets of the Corporation, were transferred to the Partnership. These are the notes involved in this litigation.
The record reveals that plaintiff made numerous attempts to collect on the notes, but with little success. However, it appears that Livingston made a payment of $500 on each note on July 23, 1976, but made no further payment thereafter, although he acknowledged the existence of the indebtedness on numerous occasions thereafter. Following Livingston's failure to make a payment on March 4, 1978, the plaintiff brought this action on June 13, 1978 to recover on the notes. After a trial to the court sitting as the trier of facts, the court entered judgment for the plaintiff Partnership, as set out above.
Livingston has appealed that decision to this court, assigning several errors as grounds for reversal. He first contends that the trial court erred in holding that the execution of the notes and the acknowledgment of the indebtedness in several letters avoided the requirements of the statute of frauds as to the necessity of written contracts with brokers for the sale of lands and also avoided the requirements of the Nebraska statutes with reference to the recovery of compensation by unlicensed brokers, and thus that the notes subsequently sued upon were legally collectible.
At this time, it will be helpful to review the pertinent Nebraska statutes. Neb.Rev.Stat. § 36-107 (Reissue 1978), relied upon by Livingston, provides, so far as applicable, as follows: "Every contract for the sale of lands between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the owner of the land and the broker or agent."
The history of the various Nebraska statutes requiring the licensing of real estate brokers as a condition to recovering compensation for their services, is more extended and complicated. It must be remembered that the transactions involved in this case occurred in 1974, although this action was not commenced until June 13, 1978, and the judgment rendered on January 10, 1979. On the date of the transaction in question, it is clear that the Corporation did not hold a broker's license in Nebraska, although both Harold and Vogt had individual licenses in effect both in Nebraska and Colorado, and the Corporation was duly licensed in Colorado.
The entire statutory law relating to the Real Estate Commission, and the licensing of brokers, was rewritten in 1973 in 1973 Neb. Laws, L.B. 68, and that statutory provisions applicable at the time of the transaction in question were as set out below. Neb.Rev.Stat. § 81-885.02 (Reissue 1976) was as follows:
After September 2, 1973, it shall be unlawful for any person, directly or indirectly, to engage in or conduct, or to advertise or hold himself out as engaging in or conducting the business, or acting in the capacity, of a real estate broker, associate broker, or real estate salesman within this state without first obtaining a license as such broker, associate broker, or salesman, as provided in sections 81-885.01 to 81-885.47, unless he is exempted from obtaining a license under section 81-885.04.
Likewise, Neb.Rev.Stat. § 81-885.06 (Reissue 1976) provided:
No action or suit shall be instituted, nor recovery be had, in any court of this state by any person for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provision of sections 81-885.01 to 81-885.47, to other than licensed brokers, licensed associate brokers, or licensed salesmen unless such person, partnership, or corporation was duly licensed under sections 81-885.01 to 81-885.47 as broker, associate broker, or salesmen prior to the time of offering to perform any such act or service or procuring any promise to contract for the payment of compensation for any such contemplated act or service.
The new statute enacted in 1973 also provided:
After September 2, 1973, no original broker's license shall be granted to a corporation or partnership unless the corporation or partnership designates a qualifying broker who is an officer of the corporation or a member of the partnership and who shall have...
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