Sluys v. Finfrock, 26009

CourtSupreme Court of Louisiana
Writing for the CourtLAND, J.
Citation103 So. 730,158 La. 175
Decision Date02 March 1925
Docket Number26009,26227

103 So. 730

158 La. 175


Nos. 26009, 26227

Supreme Court of Louisiana

March 2, 1925

On Application for Rehearing March 30, 1925

Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.

Action by M. Vander Sluys against Alice H. Finfrock, in which a writ of attachment was also issued. From judgments sustaining exceptions of no right of action and dissolving attachment, plaintiff appeals.

Second judgment affirmed, first judgment amended, and case remanded, with directions.

Keeney & Dimitry, of Shreveport, for appellant.

Palmer & Hardin, of Shreveport, for appellee.

Percy Saint, Atty. Gen., and Percy T. Ogden, Asst. Atty. Gen., for Louisiana Real Estate Board.

Nathan William MacChesney, of Chicago, Ill., for National Ass'n of Real Estate Board.

LAND, J. O'NIELL, C. J., concurs.

OPINION [103 So. 731]

[158 La. 177] LAND, J.

This is a suit to recover a balance of $ 5,000, alleged to be due by defendant to plaintiff as commissions on the sale, in the year 1922, of an oil and gas lease on certain acreage in Claiborne parish.

Defendant filed an exception of no cause or right of action to plaintiff's petition, especially upon the ground that plaintiff does not allege that he is a duly licensed real estate broker of the state of Louisiana, under Act 236 of 1920, and as such entitled to recover a commission.

Before the exception was tried and disposed of, plaintiff was permitted to amend his original petition. In the supplemental petition filed by plaintiff it is alleged:

"That your petitioner is a duly qualified realty dealer and licensed broker under the provisions of Act 236 of 1920, that his delinquency for the year 1922 has been recognized, and that petitioner since has had issued to him the necessary acknowledgment as having paid his tax for the year 1922 and 1923, and as having satisfied his delinquency under the provisions of the act."

The supplemental petition was filed by plaintiff May 16, 1923, and the exception of no cause or right of action was renewed as to the petition, as amended, by defendant on May 26, 1920.

[158 La. 178] The case was argued on the exceptions of no cause or right of action and submitted on briefs April 2, 1923, and plaintiff was then permitted to file, nunc pro tunc, a plea of unconstitutionality of Act 236 of 1920.

Evidence was adduced on the trial of the plea of unconstitutionality, which was overruled, and the exceptions of no cause or right of action as to the original and amended petitions were sustained, and plaintiff's suit was dismissed.

(1) We are of the opinion that the exceptions of no cause or right of action should have been overruled.

It is contended by plaintiff that "an oil and gas lease" is not "real estate," and that the sale by him of the lease in this case as a broker for defendant did not constitute a sale of "real estate," within the intent and meaning of section 2 of Act 236 of 1920, defining the business of "a real estate broker," and, therefore, said sale was not a violation of the statute. Section 1 of said act makes it an offense for any person "to engage in the business or capacity, either directly or indirectly, of a real estate broker, without first obtaining a license under the provisions of this act."

Section 2 of said act declares:

"That a real estate broker within the meaning of this act is any person * * * who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiate the purchase or sale or exchange of real estate, or who leases or offers to lease or rents or offers for rent, any real estate or the improvements thereon for others, as a whole or partial vocation."

This section is silent as to the sale by a broker of a lease of any kind on real estate, whether on lands or houses. Mineral leases are not mentioned in this section at all. It is immaterial that it is the custom of real estate brokers to handle oil and gas leases. The business of real estate brokers is expressly defined by statute, and plaintiff must come clearly within its terms, before he can [158 La. 179] be prosecuted under the statute and punished [103 So. 732] for its violation, which is penalized with severe penalties.

In U.S. v. Wiltberger, 18 U.S. 76, 5 Wheat. 76, 5 L.Ed. 37, Marshall, C. J., said:

"To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a...

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