Ratcliff v. Cobb, 41729
| Decision Date | 19 March 1968 |
| Docket Number | No. 41729,41729 |
| Parties | A. A. RATCLIFF, Plaintiff in Error, v. Glenn COBB, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. The provisions of the Real Estate License Act, 59 O.S.1961, §§ 831--857, require that a person engaged in the activities of real estate broker or salesman, as defined and described in § 832 and § 833, be first licensed as a real estate broker or salesman in order to enforce collection of a commission for his services.
2. In an action to recover a real estate commission it is not error for the lower court to sustain a demurrer to the plaintiff's petition where there is no allegation that plaintiff was a licensed real estate broker or salesman at the time the alleged cause of action arose. 59 O.S.1961, § 855.
Appeal From the District Court of Bryan County; W. A. Lackey, Assigned Judge.
Appeal by plaintiff from order of the lower court sustaining defendant's demurrer to plaintiff's petition in an action to recover a real estate commission. Affirmed.
James O. Braly, Durant, for plaintiff in error.
John Allen Phillips, II, Phillips & Moore, Durant, for defendant in error.
The parties occupy the same relative positions in this court that they occupied in the lower court and will be referred to by their trial court designation as plaintiff and defendant.
Plaintiff filed suit to recover from defendant the sum of $525 representing one-half of a $1050 real estate commission the defendant had acquired as a result of selling a tract of real estate. Plaintiff's petition alleged that the parties were long-standing friends and that defendant was a licensed real estate broker and was engaged in that business; that plaintiff and defendant jointly and orally agreed that, if and when plaintiff knew of a person interested in buying real estate in Bryan County, Oklahoma, and if and when plaintiff brought such person and defendant together and, as a result defendant completed a 'deal' the defendant would 'split' his commission with plaintiff; that plaintiff was not engaged in the business of real estate broker, and did not act in the capacity of real estate broker; that plaintiff knew of a tract of land that had been listed for sale with defendant and knew of a person interested in buying real estate and brought this person and defendant together and as a result defendant sold the land to the person and defendant made a commission of $1050; that plaintiff did not sell, lease, or rent the property and did not have it listed; and that defendant breached the agreement and failed to pay plaintiff the $525 due him.
Defendant filed a general demurrer on the ground the petition failed to state a cause of action, and a special demurrer for the reason it failed to comply with 59 O.S.1961, § 855, requiring a person to allege and prove he was a licensed real estate broker or salesman as a requisite to bringing and maintaining an action for recovery of compensation for services rendered in the (among other things) buying or selling of any real estate.
The lower court sustained the demurrer and plaintiff has perfected an appeal to this court.
Plaintiff contends that the Real Estate License Act, 59 O.S.1961, §§ 831--857, was not intended to permit one party to profit at the expense of another.
Plaintiff argues that he and the defendant 'made a man-to-man agreement' and plaintiff had kept his part of the bargain and the Act, supra, should not be construed to permit defendant to escape from fulfilling his part of the agreement; that admittedly plaintiff was not a licensed broker or salesman, but that the acts or services of plaintiff did not make him a broker or salesman and he was not subject to the Act; and that he was 'a member of the public' for whose protection the Act was passed.
The merit of this argument depends upon the applicable provisions of 59 O.S.1961, § 831 et seq. Section 831 provides in part that it is unlawful for persons to engage in or carry on or act in the capacity of a real estate broker or salesman without first obtaining a license; Section 832 provides in part that the term 'real estate broker' within the meaning of the Act, shall include all persons, 'who for a fee, commission, or other valuable consideration, Or who with the intention or expectation of receiving or collecting the same.' sells any real estate, 'or who negotiates or attempts to negotiate any such activity; * * *.'; Sec. 833 provides that 'real estate salesman' shall mean and include 'any person employed or Engaged by or on behalf of a real estate broker to do or to deal in any act, acts, or transactions set out, or comprehended by the definition' of a real estate broker 'for compensation or otherwise.'; and Sec. 838 excepts from the Act certain classes of persons, but plaintiff does not fall within any of them.
Section 850 sets forth the grounds for the suspension or revocation of the license of a broker or salesman, and lists as ground under (g) 'Paying a commission or valuable consideration to any person for acts or services performed in violation of this Act,' and under (n) Paying a commission, or compensation to any person for performing the services of a broker or salesman who has not first secured his license; Sec. 854 prohibits a licensee from paying (splitting) any part of his commission to unlicensed persons; and Sec. 856 provides a penalty for violation of the Act.
Section 855 is as follows:
'No person, corporation, or association engaged within this State in the business or acting in the capacity of a real estate broker or real estate salesman shall bring or maintain an action in any court in this State for the recovery of compensation for services rendered in the listing, buying, selling, exchanging, leasing or renting of any real estate without alleging and proving that such person, corporation, or association was a licensed real estate broker or salesman at the time when the alleged cause of action arose.'
The statutory provisions furnish a full and comprehensive descriptive statement of the acts and activities...
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