Piatt & Heath Co. v. Wilmer

• Citation: 288 P. 1021,87 Mont. 382
• Decision Date: 08 May 1930
• Docket Number: 6601.
• Parties: PIATT & HEATH CO. v. WILMER.
• Court: Montana Supreme Court

288 P. 1021

87 Mont. 382

PIATT & HEATH CO. v. WILMER.

No. 6601.

Supreme Court of Montana

May 8, 1930

Rehearing Denied June 7, 1930.

Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.

Action by Piatt & Heath Company against Clifford J. Wilmer. From a judgment for plaintiff, defendant appeals.

Affirmed as modified, and remanded with direction.

J. R Wine, of Helena, for appellant.

E. G Toomey, of Helena, for respondent.

MATTHEWS J.

The Piatt & Heath Company brought action to recover a commission on the sale price of a house theretofore listed with it for sale by written contract signed by the defendant, Clifford J. Wilmer, and thereafter sold by the owner.

The complaint filed alleged that the plaintiff company was a corporation "engaged principally in the purchase, sale and rental of real estate, and as agent and factor in the handling thereof"; it did not allege that the plaintiff was licensed to act as a real estate broker. The defendant interposed a general demurrer to the complaint which was "submitted to and by the court overruled." An answer was interposed, admitting the execution of the contract and the listing and advertising of the property for sale by plaintiff and alleging sale by the defendant; admitting demand for payment of the commission and denying liability therefor.

The cause was tried to the court without a jury, and, at the close of plaintiff's case, defendant moved for judgment of nonsuit, which motion was overruled; whereupon defendant introduced evidence. The court found for the plaintiff and entered judgment for $132.50, being 5 per cent. of $2,650, the alleged sale price of the property. Defendant has appealed from the judgment.

1. Defendant asserts that the court erred in overruling his demurrer to the complaint, as the pleading was fatally defective in that it failed to allege that the plaintiff was duly licensed to act at the time the contract was made.

Section 4075, Revised Codes 1921, provides that: "No person * * * or corporation, engaged in the business of, or acting in the capacity of a real estate broker, or salesman * * * shall maintain any action * * * to recover compensation for his services * * * without alleging and proving that such person * * * or corporation was duly licensed * * * at the time the alleged cause of action arose." This section is a part of chapter 265, part 3, Political Code of 1921, for the "regulation of real estate brokers," and was passed under the police power for the protection of the state in maintaining such "regulation."

The complaint is clearly defective in that it fails to allege that plaintiff was licensed as a real estate broker, but the demurrer interposed challenges it only on the ground that "it does not state facts sufficient to constitute a cause of action." The cause of action which must be stated to withstand a general demurrer "consists of a union of the plaintiff's primary right and an infringement of it by the defendant" (McLean v. Dickson, 58 Mont. 203, 190 P. 924, 926), and when a plaintiff appropriately pleads a contract and the breach thereof, a cause of action is stated (Cohen v. Clark, 44 Mont. 151, 119 P. 775) regardless of whether or not it may be maintained.

The defect in the complaint here affects only the capacity of plaintiff to sue (section 9131, subd. 2, Rev. Codes 1921), on which ground a demurrer must "point out specifically the particular defect relied upon" (section 9132 Id.); such a demurrer being "tantamount to a plea in abatement" (Beamish v. Noon, 76 Or. 415, 149 P. 522). In the absence of such a demurrer defendant could take advantage of the defect by answer (Harbolt v. Hensen, 78 Mont. 228, 253 P. 357); but having challenged plaintiff's capacity to sue neither by special demurrer nor answer, "defendant must be deemed to have waived" the defect. Section 9136, Rev. Codes 1921. This is the rule under statutes of similar effect whether, in addition to prohibiting the maintenance of the action, they require the pleading...