Schoene v. Hickam, S-T

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation397 S.W.2d 596
PartiesCalvin G. SCHOENE and Charles M. Turlington, a Partnership d/b/aEnterprises, Respondents, v. George HICKAM, Sheriff of Jasper County, Missouri, and Otto A. Owen and Elizabeth L. Owen, Appellants
Decision Date13 December 1965
Docket NumberS-T,No. 1,No. 51189

Page 596

397 S.W.2d 596
Calvin G. SCHOENE and Charles M. Turlington, a Partnership
d/b/a S-T Enterprises, Respondents,
v.
George HICKAM, Sheriff of Jasper County, Missouri, and Otto
A. Owen and Elizabeth L. Owen, Appellants.
No. 51189.
Supreme Court of Missouri, Division No. 1.
Dec. 13, 1965.
Rehearing Denied Jan. 10, 1966.

Page 597

Robert E. Seiler, Joplin, for respondents; Seiler, Blanchard & Van Fleet, Joplin, of counsel.

John R. Martin, Joplin, for appellants; Richart, Titus & Martin, Joplin, of counsel.

Page 598

HOUSER, Commissioner.

Otto A. Owen commenced foreclosure proceedings on a motel property at Joplin, Missouri under a deed of trust executed by plaintiffs to secure their promissory note for $14,500. The note and trust deed were given for services rendered by Owen as a real estate broker in negotiating an exchange of plaintiffs' 1,200 acres of land located in Colorado for the motel property in Missouri. Plaintiffs brought suit against Owen and his wife, the payees of the note, and the local sheriff who was named trustee in the deed, to enjoin foreclosure and (1) to declare the deed of trust and note void and unenforceable as arising out of an illegal transaction or in the alternative (2) to declare that plaintiffs are not in default on the note and deed of trust. The circuit court found the note and deed of trust invalid and unenforceable and enjoined the foreclosure. Defendants appealed. Title to real estate is directly involved and this court has jurisdiction, since the ultimate issue is whether the instruments were void ab initio. Kramer v. Johnson, 361 Mo. 1085, 238 S.W.2d 416; Cannon v. Blake, 353 Mo. 294, 182 S.W.2d 303.

We find these to be the pertinent facts: Owen, a resident of Phoenix Arizona, advertised and held himself out to the public and represented himself to plaintiffs Schoene and Turlington as a real estate broker. In the course of his real estate transactions he had performed many of the acts recognized by SEC. 32-2101 OF THE ARIZONA REVISED STATUTES ANNOTATED1 as those of a real estate broker. He did business generally as a sole trader, occupying his real estate office by himself. He had been in the real estate business since 1960. He had arranged the exchange of properties in California, Colorado and Missouri, in fact all across the United States from New York to the Pacific Ocean. Owen was a licensed real estate salesman but was not a licensed real estate broker in Arizona at the times in question. As a licensed real estate salesman in the transaction in question Owen was not employed or compensated by any licensed real estate broker. He did not hold a nonresident real estate broker's or salesman's license in Colorado or Missouri. In March, 1963, Owen was employed by plaintiffs in Arizona as a real estate broker to sell or exchange plaintiffs' 1,200 acre tract of land in Colorado. There no mention of Owen acting as agent or in any capacity other than for himself. It was intended that the contract be performed and it was in fact performed in Arizona. Acting under his contract of employment. Owen advertised the 1,200 acres in newspapers in the Phoenix, Arizona area, but not in Colorado or Missouri. He at no time left the State of Arizona to show the properties in Colorado or Missouri. He did nothing personally within the borders of those states to promote the deal in any way. He did give plaintiffs the information required by them to locate and examine the motel property in Joplin. Through Owen's efforts a contract was eventually entered into between plaintiffs and William Stonecipher and wife for the exchange of the 1,200 acres of Colorado land for the motel property in Joplin, Missouri. The transaction was consummated in the office of plaintiff's attorney in Scottsdale, Arizona. In order to collect compensation for his services as a real estate broker in negotiating the trade Owen prepared a separate written commission

Page 599

agreement. The parties to this agreement were Owen and plaintiffs. It was prepared in Arizona and was signed for the partnership of Schoene and Turlington by Calvin G. Schoene in Arizona. It provided for the giving by plaintiffs of a promissory note for $14,500 to Owen and his wife to be secured by a deed of trust on the motel in Missouri. A note and deed of trust were prepared by Owen pursuant to the agreement. They were signed by plaintiffs in Maricopa County, Arizona. The note called for installment payments. The first payment was not make but several subsequent payments were made by plaintiffs and accepted by Owen. There is a dispute whether the first payment was waived but we are not concerned with this, for we do not reach the question whether plaintiffs were in default when Owen instituted foreclosure proceedings.

Plaintiffs' theory below as to the illegality of the transaction, as reflected by the pleadings, evidence and memorandum opinion of the trial judge sustaining plaintiffs' position, was that defendant Owen illegally engaged in the business of a real estate broker by negotiating an exchange agreement and entering into a commission agreement in the State of Colorado involving an illegal commission on the exchange of land in Missouri, without being licensed either in Colorado or in Missouri to engage in real estate transactions, contrary to Sec. 339.020, V.A.M.S. and Colo.R.S. Sec. 117-1-1.

Appellants' brief makes two points: 'The judgment is contrary to the law under the evidence in this case' and 'The judgment is against the weight of the evidence.' Neither point preserves anything for appellate review. Both points violate the rules of appellate practice because of their generality. Instead of sustaining respondents' motion to dismiss the appeal for violation of the rules, however, we are making an exception, in the exercise of our discretionary powers. It unmistakably appears from the argument portion of appellants' brief that appellants' principal point is that the court erred in ruling the note invalid and the trust deed unenforceable as an illegal transaction on the basis that Owen violated the licensing laws of Colorado 2 and Missouri, 3 in that Owen did not make any contract to act as a real estate broker in either of those two states and did not in fact act as a real estate broker in Colorado or Missouri, and erred in not ruling that Owen was licensed as a real estate broker in Arizona, where the contract of employment was entered into; that it was intended that the employment contract be, and it actually was, performed in Arizona and that the commission was legally earned under a valid Arizona employment contract. In support of this position appellants contend that the validity of the employment contract is governed by the law of the place where it was made (Arizona) and not by the law of the place where the real estate is located (Colorado and Missouri); that Owen did not engage in the real estate business in either of those two states, buy stayed at all times within the State of Arizona, where he was licensed; that as a licensed real estate broker Owen procured a purchaser ready, able and willing to purchase on terms agreeable to plaintiffs; that he earned his commission under the Arizona law and was given a valid note and deed of trust therefor; that recovery on these instruments cannot be refused on the ground that he failed to comply with the licensing requirements of Colorado and Missouri, which should not be applied be cause Owen did not act as a broker in those states; that the note and deed of trust should be enforced by the courts and processes of...

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20 practice notes
  • Groh v. Shelton, No. 8709
    • United States
    • Missouri Court of Appeals
    • May 20, 1968
    ...these points preserves and presents anything for appellate review. V.A.M.R. Rule 83.05, subsecs. (a)(3) and (e); Schoene v. Hickam, Mo., 397 S.W.2d 596, 599(2); Hoover v. Whisner, Mo.App., 373 S.W.2d 176, 178(1, 2), and cases there cited. We have no duty to seine through the entire brief in......
  • Greer v. Zurich Ins. Co., No. 53278
    • United States
    • United States State Supreme Court of Missouri
    • May 12, 1969
    ...a general rule, a valid and enforceable contract may not arise out of a transaction prohibited by statutory law. Schoene v. Hickam, Mo., 397 S.W.2d 596, 602(11); Gilbert v. Edwards, Mo.App., 276 S.W.2d 611, 620(13, 14). The question is one of legislative intention. 17 C.J.S. Contracts § 201......
  • Modine Mfg. Co. v. Carlock, No. 57139
    • United States
    • Missouri Supreme Court
    • May 13, 1974
    ...were made and performed and the transactions occurred, governs the substantive contractual rights of the parties. Schoene v. Hickam, 397 S.W.2d 596(5) On November 8, 1960 American and Carlock signed a printed form of Manufacturer's Agreement naming Carlock as a Distributor (Exhibit 1). Par.......
  • Ingalls v. Neufeld, No. 9236
    • United States
    • Missouri Court of Appeals
    • November 10, 1972
    ...462 S.W.2d 812; Miller Nationwide Real Estate Corporation v. Sikeston Motel Corporation, Mo., 418 S.W.2d 173; Schoene v. Hickam, Mo., 397 S.W.2d 596; Gilbert v. Edwards, Mo.App., 276 S.W.2d 611. Nevertheless, it was plain in each of those cases that the predominant feature of the particular......
  • Request a trial to view additional results
20 cases
  • Groh v. Shelton, No. 8709
    • United States
    • Missouri Court of Appeals
    • May 20, 1968
    ...these points preserves and presents anything for appellate review. V.A.M.R. Rule 83.05, subsecs. (a)(3) and (e); Schoene v. Hickam, Mo., 397 S.W.2d 596, 599(2); Hoover v. Whisner, Mo.App., 373 S.W.2d 176, 178(1, 2), and cases there cited. We have no duty to seine through the entire brief in......
  • Greer v. Zurich Ins. Co., No. 53278
    • United States
    • United States State Supreme Court of Missouri
    • May 12, 1969
    ...a general rule, a valid and enforceable contract may not arise out of a transaction prohibited by statutory law. Schoene v. Hickam, Mo., 397 S.W.2d 596, 602(11); Gilbert v. Edwards, Mo.App., 276 S.W.2d 611, 620(13, 14). The question is one of legislative intention. 17 C.J.S. Contracts § 201......
  • Modine Mfg. Co. v. Carlock, No. 57139
    • United States
    • Missouri Supreme Court
    • May 13, 1974
    ...were made and performed and the transactions occurred, governs the substantive contractual rights of the parties. Schoene v. Hickam, 397 S.W.2d 596(5) On November 8, 1960 American and Carlock signed a printed form of Manufacturer's Agreement naming Carlock as a Distributor (Exhibit 1). Par.......
  • Ingalls v. Neufeld, No. 9236
    • United States
    • Missouri Court of Appeals
    • November 10, 1972
    ...462 S.W.2d 812; Miller Nationwide Real Estate Corporation v. Sikeston Motel Corporation, Mo., 418 S.W.2d 173; Schoene v. Hickam, Mo., 397 S.W.2d 596; Gilbert v. Edwards, Mo.App., 276 S.W.2d 611. Nevertheless, it was plain in each of those cases that the predominant feature of the particular......
  • Request a trial to view additional results

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