Toole v. Wiregrass Development Co.
| Decision Date | 14 July 1914 |
| Docket Number | 425. |
| Parties | TOOLE v. WIREGRASS DEVELOPMENT CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Under a statute passed for the purpose of raising revenue, which provides that every person or firm engaged in the business of buying or selling real estate on commission shall pay the sum of $10 for each county in which he or they may conduct such business, and that, before such persons shall be authorized to open up or carry on such business, they shall go before the ordinary of the county in which they propose to do business and register their names and the business they propose to engage in, the place where it is to be conducted and shall then pay their tax to the collector, and that any person failing to comply with the foregoing requirements shall be guilty of a misdemeanor, but which does not provide that the business conducted by such persons failing to comply with the statute shall be void and unenforceable, it is not a defense to a suit brought by such person selling or buying real estate on commission, to recover commissions on sales of real estate made by him, that he had failed to pay the tax and register as required by the statute.
The court erred in sustaining the demurrer to the plaintiff's petition.
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
Action by John F. Toole against the Wiregrass Development Company. Judgment for defendant, and plaintiff brings error. Reversed.
The plaintiff, John F. Toole, brought suit against the Wiregrass Development Company to recover the sum of $7,500 as commissions on sales of real estate during the years of 1910 and 1911. The petition alleged in substance as follows: In June, 1910, the plaintiff was conducting a real estate business at Macon, Ga. At this time plaintiff and defendant began negotiations looking to the employment of plaintiff by defendant, to handle and sell for defendant a lot of town property at Pecan City in Dougherty county, Ga. The property was divided into numerous parcels, and it was in the contemplation of the parties that the parcels should be sold separately or together, and that it would probably take several months in order to complete the sale. In August 1910, pursuant to the negotiations, defendant, through its president and general manager, W. E. Aycock, telegraphed plaintiff to come to its office at Moultrie, Ga., to discuss with the defendant the making of the contract. In response to the telegram plaintiff went to defendant's office and came to an agreement with defendant, by the terms of which plaintiff was to move from Macon, Ga., to Pecan City, and was to remain there as a resident salesman and general agent of the defendant company looking after and preserving the lands, improving, advertising, and selling the same as rapidly as possible. Under the agreement plaintiff was to receive no salary or compensation for his services, except commissions on the purchase price of any and all of the lands sold by the company; plaintiff's commissions being 10 per cent. of the purchase price of all sales made by him alone and independently of the efforts of other real estate agents and of defendant, and 5 per cent. upon any and all other sales of land made by the company while plaintiff continued at the work. In October, 1910, plaintiff removed from Macon to Pecan City and entered upon his duties under the contract. He continued to remain at Pecan City until September, 1911. During the time he was at Pecan City he faithfully discharged his duties under the contract, and vigorously advertised and pushed the sales of the parcel of land, carefully protected it, and remained on it for the purpose of showing prospective purchasers over it, and gave his best efforts to the establishment of a post office, schools, churches, and merchants in the town. During the months of October, November, December, January, and February, considerable portions of the lands were sold by the company to various persons, amounting to about $12,000; and in each instance, as soon as the sale was closed, the defendant paid the plaintiff, in accordance with its contract, 10 per cent. commissions on such sales as were made by the plaintiff alone and 5 per cent. on all other sales. In the course of his advertising the lands and by correspondence, the plaintiff, in February, 1911, wrote to J. H. Ernest, of Albany, Ga., who was dealing extensively in lands in that vicinity, seeking to effect a sale of the entire tract of land to him. He did not reply to the letter in writing, but soon thereafter went to see the lands and began to consider the purchase. While continuing his efforts to sell the land, W. E. Aycock, the president of the company, notified the plaintiff, in April, 1911, that he had hopes of selling the entire remaining portion of the land to Ernest, and suggested to plaintiff that he suspend further advertisement of the lands pending the negotiations with Ernest. Pending these negotiations, Aycock consulted with the plaintiff as to the manner of securing the sale to Ernest; and finally, a short time thereafter, Aycock notified plaintiff that the company had succeeded in selling to Ernest all of the property then remaining, except a few town lots. The company did, in June, 1911, sell to Ernest, or to him and his associates, the remaining land, and the price agreed upon was $150,000. After the sale Aycock told plaintiff that plaintiff's commission of 5 per cent. on the purchase price should be paid as soon as possible, but that the purchase price was partly on credit, and plaintiff might have to take his commissions in notes, which plaintiff agreed to do. Later, in November, 1911, plaintiff was notified by Aycock that he would not be paid his commissions on the sale to Ernest, for the alleged reason that the directors of the company declined to authorize payment.
Plaintiff further alleged: He did not, in the year 1911 or 1912, go before the ordinary of Bibb, Dougherty, or Colquitt county and register his name, the business that he proposed to engage in, and the place where it was to be conducted, or pay special tax as a person engaged in the business of buying and selling real estate on commission. It was not necessary for him to do so, because the contract made by him with defendant was one of employment and service, and not one of the real estate owner on the one hand and a person or firm engaged in the business of buying and selling real estate on commissions on the other, for the reason that plaintiff was not, at the time of making the contract, or at any time during the execution thereof, a person or firm engaged in the business of buying or selling real estate on commission; but, on the contrary, plaintiff was, during all of that time, the employé of defendant alone, and his entire time and services were, by the terms of the contract, commanded by the defendant alone, and he was not employed by or rendering service to any one else. The contract between plaintiff and defendant was not such a one for the selling of real estate on commission as is contemplated by the tax acts imposing a tax on a person or firm engaged in the business of buying or selling real estate on commission. Further, at the time that plaintiff was engaged in the execution of the contract, he was an indigent Confederate soldier, who was a resident of this state, and therefore was not subject to the payment of the tax, and, even if he was subject to the tax, the nonpayment of it is not and should not be a legal reason why he should not be entitled to his compensation under the terms of the contract.
The defendant demurred to the petition on the grounds, among others, that there nothing was alleged to show that Aycock had any authority, expressed or implied, to bind the defendant corporation; and that the plaintiff could not recover a money judgment against the defendant; the petition showing that there was only an agreement for a sale, and that no sale had been finally consummated, and not alleging that the purchase price, or any portion thereof, had ever been paid to the defendant. A further ground of demurrer was that, it appearing that the plaintiff had not complied with the law with reference to real estate agents taking a license to do business, there can be no recovery in this case. The court sustained the demurrer on each and every ground, and dismissed the petition. Whereupon the plaintiff excepted.
W. A. Covington, of Moultrie, and Pope & Bennet, of Albany, for plaintiff in error.
Shipp & Kline, of Moultrie, for defendant in error.
HILL, J. (after stating the facts as above).
The plaintiff brought suit against the Wiregrass Development Company to recover certain commissions, amounting to $7,500, alleged to have been earned by the sale of certain real estate under and by virtue of a contract entered into between the plaintiff and the defendant. The defendant demurred to the petition on the various grounds set out in the foregoing statement of facts. One ground of the demurrer was that the plaintiff was not entitled to recover because he had not complied with the law with reference to real estate agents taking out a license to do business as required by statute, and that the contract was therefore void and unenforceable. The court sustained the demurrer and dismissed the petition. We will now consider this ground of the demurrer.
The Civil Code, § 971, provides:
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