Strumpf v. State

• Decision Date: 11 April 1944
• Docket Number: 6 Div. 52.
• Citation: 18 So.2d 104,31 Ala.App. 409
• Parties: STRUMPF v. STATE.
• Court: Alabama Court of Appeals

18 So.2d 104

31 Ala.App. 409

STRUMPF v. STATE.

6 Div. 52.

Alabama Court of Appeals

April 11, 1944

Rehearing Denied May 9, 1944.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn Judge.

Section 299, Title 46, of the Code, referred to in opinion, is as follows:

"A real estate broker within the meaning of this chapter is any person, firm, partnership, co-partnership, association or corporation, who, for a compensation or valuable consideration, sells or offers for sale, buys or offers to buy, negotiates the purchase or sale or exchange of real estate, or who leases or offers to lease, rents or offers for rent, any real estate or the improvements thereon for others as a whole or partial vocation. The term 'real estate' as used in this chapter shall include leaseholds and other interests less than leaseholds. A real estate salesman within the meaning of this chapter is any person who, for a compensation or valuable consideration, is employed either directly or indirectly by a real estate broker to sell or offer to sell, or to buy or offer to buy or to negotiate the purchase or sale or exchange of real estate, or to lease, to rent or offer for rent any real estate, or to negotiate leases thereof, or of the improvements thereon, as a whole or partial vocation. One act for a compensation or valuable consideration of buying or selling real estate of or for another, or offering for another to buy or sell, or exchange real estate, or leasing, or renting, or offering to rent real estate, except as herein specifically excepted, shall cause the person, firm, partnership, co-partnership, association or corporation, performing, offering, or attempting to perform any of the acts enumerated herein to become a real estate broker or a real estate salesman within the meaning of this chapter. The provisions of this chapter shall not apply to any person, co-partnership, association or corporation, who as owner or lessor shall perform any of the acts aforesaid with reference to property owned or leased by them, or to the regular employees thereof, with respect to the property so owned or leased, where such acts are performed in the regular course of, or as an incident to, the management of such property and the investment therein, nor shall the provisions of this chapter apply to persons acting as attorney-in-fact under a duly executed power of attorney from the owner authorizing the final consummation by performance of any contract for the sale, leasing, or exchange of real estate, nor shall this chapter be construed to include in any way the services rendered by an attorney-at-law, in the performance of his duties as such attorney-at-law; nor shall it be held to include, while acting as such, a receiver, trustee in bankruptcy, administrator or executor, or any person selling real estate under order of court, nor to include a trustee acting under a trust agreement, deed of trust, or will, or the regular salaried employees thereof."

The indictment is as follows:

"1. The Grand Jury of said County, charges that before the finding of this indictment P. S. Strumpf, whose name is otherwise unknown to this Grand Jury and within twelve months before the finding of this indictment, did, for a valuable consideration or compensation, as a whole or partial vocation, sell or offer to sell, buy or offer to buy, lease or offer to lease, rent or offer to rent, or otherwise negotiate the sale, purchase, or exchange of real estate or an interest therein as agent or salesman of another without having first procured a license from the Alabama Real Estate Commission, so to do as provided by law and contrary to law.

"2. The Grand Jury of said County further charges that, before the finding of this indictment, P. S. Strumpf, whose name is otherwise unknown to this Grand Jury and within twelve months before the finding of this indictment, did, for a valuable consideration or compensation, as a whole or partial vocation, sell or offer to sell, buy or offer to buy, lease or offer to lease, rent or offer to rent, or otherwise negotiate the sale, purchase, or exchange of real estate or an interest therein as agent or salesman of another without having first procured a license, so to do as provided by law and contrary to law.

"3. The Grand Jury of said County further charges that, before the finding of this indictment, P. S. Strumpf, whose name is otherwise unknown to this Grand Jury and within twelve months before the finding of this indictment, did, for compensation or a valuable consideration, sell or offer to sell, rent or offer to rent, buy or offer to buy, lease or offer to lease, or otherwise negotiate the sale, purchase, or exchange of real property or an interest therein as a real estate salesman or a real estate broker without having first procured a license from the Alabama Real Estate Commission, so to do as provided by law and contrary to law,

"4. The Grand Jury of said County further charges that, before the finding of this indictment, P. S. Strumpf, whose name is otherwise unknown to this Grand Jury and within twelve months before the finding of this indictment, did, for compensation or a valuable consideration, sell or offer to sell, rent or offer to rent, buy or offer to buy, lease or offer to lease, or otherwise negotiate the sale, purchase, or exchange of real property or an interest therein as a real estate salesman or a real estate broker without first having procured a license, so to do as provided by law and contrary to law, against the peace and dignity of the State of Alabama."

Horace C. Wilkinson, of Birmingham, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and Geo. C. Hawkins, Asst. Atty. Gen., for the State.

SIMPSON Judge.

Appellant was convicted in the circuit court of selling real estate without a real estate salesman's or broker's license as required by Chapter 14, Title 46, Sections 298 et seq. of the 1940 Code of Alabama. (The report of the case will contain Section 299.)

Trial was upon an agreed statement of facts which is incorporated in the record as the bill of exceptions. This agreed statement of the evidence shows: Polakow's Realty Experts, Inc., a corporation doing business in Bessemer, was the owner of certain real estate known as Garden Highlands and subdivided the property into lots and put these lots on the market for sale, through its regularly employed agents, some working for a straight salary and others on commission. The exclusive business of said corporation, during the proscriptive period of the indictment, was the purchasing and subdividing of acreage into lots and the selling of said lots to the public through its said employees. Appellant was selling said lots on commission and devoted his entire time to this employment. He was employed by no one else. This was his exclusive vocation and his duties were to find prospects and sell the lots owned by said corporation, making contracts of sale in the name of said corporation as owners thereof. The agreed stipulation of facts further recites that appellant was a regular employee of said corporation.

The overall question presented by the appeal is whether or not, under this statement of the evidence, appellant would be liable for a State license as a real estate salesman or broker.

By the terms of the act (Section 299) a "real estate broker", to be liable for a license for selling real estate, must "for a compensation or valuable consideration, sell(s) * * * real estate * * * for others", and a "real estate salesman", to be so liable, must be "employed" by such real estate broker.

Manifestly, the corporation was not a broker within the meaning of the act because it did not (to use the language of the act) "for a compensation or valuable consideration, sell(s) or offer(s) for sale, buy(s) or offer(s) to buy, negotiate(s) the purchase or sale or exchange * * *, or * * * lease(s) or offer(s) to lease, rent(s) or offer(s) for rent, any real estate or the improvements thereon for others." In other words, the corporation was not a broker because it was engaged in doing no business for others. It was selling its own real estate exclusively. Appellant, therefore, was not a real estate salesman (not employed by a broker) and therefore was not liable for a real estate salesman's license.

But was he a broker under the statute? We...