Tooker v. Duckworth

• Decision Date: 10 May 1904
• Citation: 80 S.W. 963,107 Mo. App. 231
• Court: Missouri Court of Appeals
• Parties: TOOKER v. DUCKWORTH.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 963

107 Mo. App. 231

TOOKER v. DUCKWORTH.^*

St. Louis Court of Appeals. Missouri.

May 10, 1904.

REAL ESTATE AGENTS — FAILURE TO OBTAIN LICENSE — CONTRACT — VALIDITY — RIGHT TO COMMISSIONS.

1. Failure of a real estate agent to comply with a city ordinance requiring real estate agents to obtain a license, and providing a penalty for failure to do so, does not render void a contract for compensation made by the agent with his principal, in the absence of any showing that both parties to the contract agreed beforehand that the statute should be violated.

2. Where a prospective purchaser secured by a real estate agent refused to buy the property, but, after negotiating with the owner, offered to buy the entire property if the owner would purchase an adjoining lot, and include this for the price for which the agent was originally authorized to sell the property without the lot, the agent was not entitled to commission on consummation of the agreement with the owner.

Appeal from Circuit Court, Lawrence County; H. C. Pepper, Judge.

Action by L. A. Tooker against J. C. Duckworth. From a judgment for defendant, plaintiff appeals. Affirmed.

H. H. Bloss, for appellant. E. J. White, for respondent.

BLAND, P. J.

The suit was brought in a justice's court on the following account:

                                   Aurora, Mo., Aug. 25, 1903
                Mr. J. C. Duckworth in account with
                                 L. A. Tooker, Dr
                To services performed in selling a
                  stock of goods and a building as per
                  agreement in 1900...................  $100 00
                Interest since 1900 at six per cent
                  being three years...................    18 00
                                                        _______
                                                        $118 00
                

The cause was taken by appeal to the circuit court, where, on a trial de novo to the court sitting as a jury, the issues were found for the defendant. Plaintiff appealed.

Plaintiff's evidence shows that defendant owned a lot, in the city of Aurora, Mo., with a building on it containing a stock of hardware which he wanted to sell. In the year 1899 or 1900, the defendant agreed to pay plaintiff the sum of $100 if he would find him a buyer for $2,200. Plaintiff testified he found a purchaser in L. N. Coleman, who bought the property at the price defendant authorized plaintiff to sell it for. The evidence of defendant and Coleman is that Coleman would not buy the property as it stood, but agreed that he would trade if plaintiff would buy and put into the trade an adjoining lot, known as the "Butts Lot." In order to effectuate the trade, plaintiff bought the Butts lot, and then sold the whole as one property to Coleman. The evidence shows that plaintiff resided in the city of Aurora, a city of the fourth class, and that he had had some previous transactions as a real estate agent. Prior to the making of the contract between plaintiff and defendant, the city had, and still has, in force the following ordinance:

"Sec. 277. Licenses — How Regulated. — All the various objects, subjects, trades, avocations and occupations herein mentioned within the city of Aurora, shall be licensed, taxed and regulated as hereinafter provided."

"Sec. 278. Licenses — Who Shall Have. — It shall be unlawful for any person, company, association, firm or corporation to exercise, carry on or engage in any of the following occupations, trades, professions, business or agencies in the city of Aurora without obtaining a license therefor from said city and the charges for such licenses shall be respectively as follows, to-wit. [Then follows the enumeration of the occupations and among the occupations the following]:

"Real Estate Agents: Twenty-five dollars for one year. The term real estate agents shall include every person, corporation, firm or partnership who shall act as agent for any person or persons or corporation for the sale or exchange of, or the selling or exchanging of real estate, or who shall advertise or hang out any sign advertising any real estate for sale as such agent, excepting only the clerks of real estate agents complying with the provisions of this section."

"Sec. 285. Penalty for Carrying on Business Without a License. — Any person who shall carry on or engage or offer or attempt to carry on or engage in any trade, business or profession, agency, occupation, vocation or calling herein required to be licensed without first having paid for or obtained such license so required as herein provided or any person having obtained such license who shall exercise or carry on any trade, business, profession, agency, occupation, vocation or calling in any manner different to that herein provided, or shall violate any of the provisions of this chapter, shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one nor more than one hundred dollars."

The plaintiff had never complied with this ordinance by procuring a license from the city authorizing him to carry on the business of a real estate agent.

1. The plaintiff asked and the court refused the following declaration of law: "The court declares the law to be that it would not be warranted in finding the issues in this case for the defendant because it might believe from the evidence that at the time of the transactions in evidence the plaintiff was not a licensed real estate agent or broker, and that at such time the city of Aurora had an ordinance imposing a penalty on any one acting as such real estate broker or agent in such city without first procuring a license." No other declarations of law were asked or given. The refusal of this one is assigned as error, and in support of this assignment the plaintiff cites ...