Verona v. Schenley Farms Co.
| Decision Date | 22 May 1933 |
| Docket Number | 76 |
| Citation | 167 A. 317,312 Pa. 57 |
| Parties | Verona v. Schenley Farms Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 30, 1933
Appeal, No. 76, March T., 1933, by defendant, from order of C.P. Allegheny Co., July T., 1932, No. 3681, in case of John J. Verona v. The Schenley Farms Co. Reversed.
Assumpsit to recover commissions. Before McNAUGHER, J.
The opinion of the Supreme Court states the facts.
Rule for judgment for want of sufficient reply to new matter in defendant's affidavit of defense. Discharged. Defendant appealed.
Error assigned, inter alia, was order of court, quoting record.
In accord with section 17 of the Practice Act, as amended April 22, 1929, P.L. 62, authorizing this court to enter such "judgment as justice may require" we must reverse the order appealed from and here enter judgment for defendant.
William R. Scott, of Smith, Buchanan, Scott & Gordon, for appellant. -- The Act of 1829, P.L. 1216, prohibits recovery: Luce v. Cook, 227 Pa. 224; Meyer v. Wiest, 250 Pa 573; Webb v. Rachmil, 75 Pa.Super. 193.
Plaintiff was not exempted from the requirement of a license by reason of being an alderman: Com. v. Kerr, 3 Pgh. Rep. 348.
John E Evans, with him Charles J. Margiotti, for appellee, cited: Felt v. Cook, 95 Pa. 247; Smith v. R.R., 182 Pa. 139; Devers v. Scranton, 308 Pa. 13.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
This appeal is from an order refusing judgment for want of a sufficient reply by plaintiff to defendant's averment of new matter. Plaintiff claims $150,000 for performance of an oral contract. Defendant denied making the contract, and, also, the performance alleged, and, under new matter, in substance averred that plaintiff's statement showed that, in the transaction declared on, he was a real estate broker within the terms of the Real Estate Brokers' License Act of 1929, P.L. 1216, 63 PS, section 431 et seq.; that he had no license as required by section 6, and that suit was prohibited by section 16.
By proceedings, described in Sheets v. Armstrong, 307 Pa. 385, 161 A. 359, the County Commissioners of Allegheny County agreed to purchase from Schenley Farms Company certain land for a Town Hall. In the present suit, Verona, the plaintiff, avers that the owner of that land, Schenley Farms Company, the present defendant, "sought the services and assistance of [plaintiff] to act as agent for the [defendant] to present to the [commissioners] the special, peculiar and particular advantages of [defendant's land] . . . to the end that said real estate might be sold to the county." He also avers that the parties "entered into an oral contract" whereby plaintiff "agreed to use his best efforts in presenting to the [commissioners] the special, particular and peculiar advantages of [defendant's land] . . . as being the most fitting, suitable and desirable location for the auditorium or 'Town Hall,' then under consideration, as compared with other properties which were being offered and considered by the said County Commissioners, to the end that the same might be sold to the said County of Allegheny for the purposes aforesaid," and that defendant agreed to pay for his services in installments to mature in circumstances which, in view of our conclusion on the principal question, need not be stated.
The Real Estate Brokers' License Act of 1929 is entitled "An act to define real estate brokers and real estate salesmen; and providing for the licensing, regulation, and supervision of resident and nonresident real estate brokers and real estate salesmen and their business."
Briefly, it may be said, the purpose of the act was comprehensive regulation of the business of selling real estate for others. To that end, sellers were divided into two general groups, one requiring a license and the other not. Each group was subdivided into classes; the first group into two classes, (a) real estate brokers and (b) real estate salesmen. The second group was divided into a number of classes, as will appear later. The distinction between the two main groups depended on whether or not a party was engaged in the business of selling real estate for others; parties so engaged are in the first group. Parties not in the business of selling for others are in the second group. The duty of issuing licenses and otherwise administering the statute was vested in the Department of Public Instruction.
Section 2 defines, in paragraph (a), a real estate broker; in paragraph (b) a real estate salesman; and in paragraph (c) excepts and excludes from those definitions certain classes of real estate brokerage that might otherwise be within the general language of (a) and (b).
Section 6 makes it "unlawful for any person . . . to engage in or carry on the business, or act in the capacity of a real estate broker, or a real estate salesman, within this Commonwealth, without first obtaining a license as a real estate broker or real estate salesman from the department."
Section 8 requires each broker to pay a license fee of $10, and each real estate salesman a fee of $5. These fees are payable in addition "to any and all other license fees or license taxes imposed, or to be imposed, upon real estate brokers and real estate salesmen by this Commonwealth or any subdivision thereof."
Other sections confer on the department power to revoke licenses in specified circumstances, subject to judicial review. See Young v. Department of Public Instruction, 105 Pa.Super. 153, 160 A. 151.
Section 12 makes it a misdemeanor to "engage in or carry on the business, or act in the capacity of a real estate broker . . . within this Commonwealth, without a license . . ." and provides penalties for conviction thereof.
Section 16 provides: "No action or suit shall be instituted, nor recovery therein be had, in any court of this Commonwealth, by any person . . . for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act to others than licensed real estate brokers, unless such person . . . was duly licensed hereunder as real estate broker at the time of the doing of such act or the rendering of such service."
In plaintiff's reply to new matter he asserted that he was not required to have a license for two reasons: first, that he was not engaged in the real estate business as broker or salesman during the making and performance of the contract in suit; second, that he was an alderman in the third ward of the City of Pittsburgh and therefore within the exception of justices of the peace stated in section 2 (c).
We agree with the learned court below that plaintiff's averment that he was an alderman did not bring him within the excepted class, justices of the peace; the legislature has uniformly made a distinction between the two offices. But we cannot assent to the view of the learned court on the first point, that the services declared for "were not the services of a real estate broker or salesman but rather those of a promoter."
Plaintiff's averment, in his reply, that, in performing the contract, he was not "engaged in the real estate business," is mere denial of what the statute defines as "acting in the capacity of a real estate broker," a denial which, therefore, amounts to nothing. We all agree that the described negotiation with the county commissioners, in the ordinary and accepted definition of the word "negotiate," was the work of a real estate broker within the meaning of the statute. The legislature was of course familiar with the great variety of real estate brokerage contracts made from time to time, and the definition of real estate broker must be understood in the light of the common knowledge on the subject; some idea of the varied scope of such contracts may be obtained by examining the cases cited in Shepard's Annotations to Keyes v. Johnson, 68 Pa. 42 (1871) down to Shapira v. Union Trust Co., 306 Pa. 35 (1932), 158 A. 564.
The pleadings disclose that plaintiff was unlicensed, and that the transaction is directly within the prohibitions of sections 6 and 16, which prevent recovery. There is no averment that can bring him within any of the classes excepted in section 2 (c) which alone prescribes the conditions in which a license is not required.
Section 2, paragraphs (a), (b) and (c) provide (so far as now material) that (a)
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