Rothwell v. Gibson

• Decision Date: 11 December 1906
• Parties: ROTHWELL v. GIBSON.
• Court: Missouri Court of Appeals

98 S.W. 801

121 Mo. App. 279

ROTHWELL v. GIBSON.

St. Louis Court of Appeals. Missouri.

December 11, 1906.

BROKERS—RIGHT TO COMPENSATION—WRITTEN AUTHORITY—STATUORY PROVISION.

Under Act March 28, 1903 (Acts 1903, p. 161), making it a misdemeanor for any person in cities of 300,000 inhabitants or more to offer for sale any real property without the written authority of the owner, or of his attorney in fact, appointed in writing, a person selling real property is not entitled to recover the agreed commission therefor unless he has written authority to offer the property for sale.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Joseph S. Rothwell against John D. Gibson. From judgment in favor of defendant, plaintiff appeals. Affirmed.

R. M. Nichols, for appellant. C. J. Anderson and H. A. Loevy, for respondent.

BLAND, P. J.

On September 16, 1904, plaintiff, a real estate agent doing business in the city of St. Louis, a city having more than 300,000 inhabitants, made a verbal contract with defendant to find a purchaser for a piece of property located on Morgan street, in said city, at $7,500. Defendant agreed to pay plaintiff 2½ per cent. commission on the purchase price if he succeeded in finding a purchaser ready, willing and able to purchase the property for $7,500. Plaintiff found a purchaser, who, according to his evidence, was ready, willing, and able to purchase the property at said price. Defendant accepted the purchaser and entered into a written contract with him, agreeing to convey the property to him, and the purchaser paid defendant $100 as earnest money. Defendant agreed to make a warranty deed to the purchaser, conveying a good title. The purchaser had the title examined by his attorney, who reported that he found a defect in it, whereupon the purchaser refused to carry out the contract. The suit is to recover the agreed commission.

On the trial plaintiff was nonsuited, for the reason his authority to sell the property, or offer it for sale, was not in writing. The General Assembly, in 1903, by an act approved March 28, 1903 (Acts 1903, p. 161), made it a misdemeanor, punishable by a fine of not less than $10 or more than $300, for any person, in cities of 300,000 inhabitants or more, to offer for sale any real property, without the written authority of the owner of such property or of his attorney in fact, appointed in writing. Under the Constitution (section 36, art. 4) the act took effect and went into force June 21, 1903, prior to the making of the verbal contract between plaintiff and defendant. Plaintiff having earned his commission by finding a purchaser accepted by the owner, and who was ready, willing, and able to make the purchase, the question is, was plaintiff's right to recover the agreed commission cut off by the act of 1903? In Prince v. Eighth St. Baptist Church, 20 Mo. App. 332, Prince, a real estate agent in the city of St. Louis, had failed to take out a license as an ordinance of the city required. He sued the defendant to recover a commission for the sale of defendant's real property he had effected. The city ordinance made it a misdemeanor to engage in the occupation of real estate agent without a license. The defendant sought to defeat plaintiff's recovery by showing the ordinance and that plaintiff had violated it. Judge Rombauer, in disposing of this defense, at page 334 of 20 Mo. App., aptly said: "The prohibition in the law touching merchants' licenses is fully as stringent; it declares that: `No person, or copartnership of persons, shall deal as a merchant without a license first obtained according to law, and every person so offending shall forfeit to the state not less than fifty dollars, nor more than five thousand dollars, for every such offense, to be recovered by indictment.' Rev. St. 1879, § 6314. Yet can it be contended that any one could purchase on credit the wares of a merchant, and then refuse to pay for them on the sole ground that the merchant was not licensed to sell? This very question was very pertinently put, arguendo, in the opinion in Prietto v. Lewis, 11 Mo. App. 601. What difference is there in principle between obtaining the goods in one case, and the services in another, which would require a party to pay for the goods, yet enable him to take the benefit of the services without payment? We see none." The same learned judge, in Smythe v. Hanson, 61 Mo. App. 285, in a suit by an unlicensed physician to recover the value of his professional services, where the defense was that he was guilty of a misdemeanor by practicing medicine without a license, said: "Where a contract is not prohibited by law, and has been fully executed by the person rendering the services, he may recover their value from the person who received the benefit, though in rendering the services the person was guilty of a misdemeanor, because he rendered them without a proper certificate or license for doing so." In Tooker v. Duckworth, 107 Mo. App. 231, 80 S. W. 963, a similar ruling, under like circumstances, was made by this court on the authority of the Smythe Case. A provision in the charter of a Maryland bank prohibiting any director or other officer of the bank, under penalty of fine or imprisonment, from borrowing money from said bank, was held, in Lester and Wife v. Howard Bank, 33 Md. 558, 3 Am. Rep. 211, not to exempt a director from liability for money loaned to him in violation of the provision. In a note to Smith v. Bromley, Dong. 697, Lord Mansfield said: "If the act is in...