Stevenson v. Ewing

• Decision Date: 27 September 1888
• Citation: 9 S.W. 230
• Parties: STEVENSON <I>v.</I> EWING.
• Court: Tennessee Supreme Court

Page 230

9 S.W. 230

STEVENSON

v. EWING.

Supreme Court of Tennessee.

September 27, 1888.

Error to circuit court, Hamilton county; D. C. TREWHITT, Judge.

Action by W. T. Ewing against A. T. Stevenson to recover for an alleged sale of real estate effected by plaintiff as a real-estate broker for defendant. Verdict and judgment for plaintiff for $200, and defendant brings error.

A. C. Downs, for plaintiff in error. Young & Barr, for defendant in error.

CALDWELL, J.

Ewing was a real-estate broker, doing business in Chattanooga, claiming to have sold a house and lot for Stevenson. He brought this action before a justice of the peace, to recover a sum alleged to be due him as commissions for the sale. The case was appealed to the circuit court, and there tried. Verdict and judgment were in Ewing's favor for $200. Stevenson has appealed in error to this court. In the court below it was contended by Stevenson that Ewing had not paid the privilege tax and procured the license required by statute of persons pursuing his avocation, and that for that reason this suit could not be maintained. The evidence tended to show that Ewing had not paid the tax and taken out license at the time he claimed to have made the sale. But the trial judge, not agreeing with the defendant as to the law applicable, instructed the jury that the failure of Ewing to pay the tax and procure the license, if established, would not defeat this action. This instruction is assigned as error.

The sale for the making of which Ewing claims commissions was made, if made at all, in February, 1887. The act of 1885, then in force, declares that the occupation of a real-estate broker "shall be deemed a privilege and be taxed, and not pursued or done without license." Acts 1885, c. 1, § 46. Here is an express prohibition of all unlicensed persons to act as real-estate brokers, and, consequently, as a prohibition by necessary inference of all contracts which such person shall make for compensation to themselves for so acting. By the clear and unambiguous terms of the statute the real-estate broker is forbidden to pursue his business without license, and it follows that if he presumes to do so his acts are in violation of law, and all contracts for his benefit are illegal and void. If he fails to equip himself with the required authority for the transaction of his business, the law will deny him its aid when he seeks to enforce his contract for commissions. We confine this holding, however, to the unlicensed broker's contract with his principal, and do not extend it to the independent contract made between vendor and vendee whom he brings together. Judge Cooley says: "When the tax takes the form of a tax on the privilege of following an employment, convenience in collection will commonly dictate the requirement of a license, and the person taxed will be compelled to pay the tax as a condition to the right to carry on the business at all. In such case the business carried on without a license will be illegal, and no recovery can be had upon contracts made in the course of it." Cooley, Tax'n, (2d Ed.) 572.

It is familiar law, both in England and America, that a contract prohibited either expressly or impliedly by statute is illegal, and cannot be enforced. Perkins v. Watson, 2 Baxt. 187; Insurance Co. v. Insurance Co., 11 Humph 11; Hale v. Henderson, 4 Humph. 200; 2 Benj. Sales, (4th Amer. Ed.) §§ 818, 825; 1 Add. Cont. § 294; Holt v. Green, 73 Pa. St. 198; Dillon v. Allen. 46 Iowa, 299; McConnell v. Kitchens, 20 S. C. 430; Woods v. Armstrong, ...