Waldrop v. Langham

• Court: Alabama Supreme Court
• Writing for the Court: LIVINGSTON; The appeal to this court is from a judgment for the defendants rendered by Hon. W. E. Callen; All the Justices concur except CLAYTON
• Citation: Waldrop v. Langham, 260 Ala. 82, 69 So.2d 440 (Ala. 1953)
• Decision Date: 17 December 1953
• Docket Number: 2 Div. 312
• Parties: WALDROP v. LANGHAM et al.

Page 440

69 So.2d 440

260 Ala. 82

WALDROP v. LANGHAM et al.

2 Div. 312.

Supreme Court of Alabama.

Dec. 17, 1953.

Withers & Kerr, Greensboro, for appellant.

G. E. Sledge and O. S. Burke, Greensboro, for appellees.

LIVINGSTON, Chief Justice.

The appeal to this court is from a judgment for the defendants rendered by Hon. W. E. Callen, Judge of the Hale County Circuit Court, sitting without a jury, and from a judgment denying plaintiff's motion for a new trial.

The action originated upon the filing of suit by W. C. Waldrop, the appellant here, to recover the sum of $3,500 for services rendered. The alleged services entailed the cruising of timber and assistance in the negotiation of sale of a certain large tract of timber then owned by the original defendant, B. S. Langham.

The complaint was filed on March 15, 1951. B. S. Langham died April 9, 1951, and Florence B. Langham, David M. Langham and B. S. Langham, Jr., were appointed as executors of the estate of B. S. Langham, deceased, and substituted as parties defendants to the original cause of action.

The complaint contains five counts. Count 1 was on open account. Count 2 claimed damages for breach of an oral contract, which contract was set forth in said count. Count 3 was for money had and received, and Counts 4 and 5 were for work and labor done.

Defendants interposed a plea of the general issue.

There are only seven assignments of error. They are as follows:

'1. The Court erred in rendering judgment for the defendants and against the plaintiff.

'2. The Court erred in overruling the motion for a new trial filed by plaintiff.

'3. The Court erred in sustaining the defendant's objection to plaintiff's question to Mr. Paul Reed, 'Are you familiar with Mr. Waldrop's reputation as a timber cruiser and handler of land?'

'4. The Court erred in sustaining defendant's objection to plaintiff's question to Mr. Wesley Beinert, 'Does he have the prestige you mention?'

'5. The Court erred in sustaining defendants' objection to question propounded to plaintiff by his attorney, 'What, in your opinion, is a reasonable and fair price for your services rendered in connection with the cruise and attempting to sell the tract of timber owned by Mr. Langham and which was sold in December, 1950?'

'6. The Court erred in sustaining defendants' objection to questions propounded by plaintiff's attorney as follows: 'What would be a reasonable charge in the community in which that timber was located for the services so rendered?'

'7. The Court erred in overruling plaintiff's objection to defendants' question to plaintiff, 'Have you ever had one (real estate license) from the Alabama Real Estate Commission?''

Assignment of Error No. 7 above presents a question of primary importance in this case. It is our opinion that each count in the complaint is based on an alleged contract, express or implied, entailing the cruising of timber and assistance in the negotiation of a sale of a certain large tract of timber owned by the original defendant, B. S. Langham; and the question is: Was the alleged contract controlled by the provisions of Tit. 46, Secs. 298 and 299 of the Code of Alabama of 1940, and if so controlled, were said sections complied with?

Section 298 of Title 46, supra, reads as follows:

'It shall be unlawful for any person, co-partnership, association or corporation to act as a real estate broker or real estate salesman, or to advertise or assume to act as such real estate broker or real estate salesman without a license issued by the Alabama real estate commission. No co-partnership, association or corporation, shall be granted a license, unless every member or officer of such co-partnership, association or corporation, who actively participates in the brokerage business of such co-partnership, association or corporation, shall hold a license as a real estate broker or salesman, as hereinafter provided for, and unless every employee who acts as a salesman for such a co-partnership, association or corporation shall hold a license as a real estate salesman.'

Section 299 of Title 46, supra, is in the following language:

'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. * * * 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, * * * 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 * * *.' (Emphasis supplied.)

Under our decisions, standing timber is unquestionably a part of land. Mt. Vernon Lumber Co. v. Shepard, 180 Ala. 148, 60 So. 825 and cases therein cited. It seems to follow, therefore, that any person, other than those specifically excepted in Tit. 46, Sec. 299, supra, is required to procure from the Alabama Real Estate Commission a license for even one act of selling, offering for sale, or negotiating the sale of standing timber of another for a compensation. Knight v. Watson, 221 Ala. 69, 127 So. 841.

Count 2 of plaintiff's complaint, as well as his own testimony, show without a doubt, we think both the alleged agreement and the alleged services rendered entailed negotiating, or negotiations for the sale of timber in direct contravention to Tit. 46, Secs. 298 and 299, supra; and it was held in the case of Knight v. Watson, supra, that in the absence of a license as required by Tit. 46, Sec. 298, supra, any contract to pay commission is not enforceable. The latter case emphasizes that legislation, such as Tit. 46, Secs. 298 and 299, supra, is passed under the police power designed to regulate the real estate business and to protect the public against fraud and imposition.

Appellant relies upon the case of Rattray v. W. P. Brown & Sons Lumber Co., 29 Ala.App. 93, 192 So. 285, 287, in support of his argument that the instant case is not controlled by Tit. 46, Secs. 298 and 299, supra. But to the contrary, we think our conclusion is strongly buttressed by the language of the Rattray case. There, the court defined a real estate broker as 'One who for a commission or fee, brings parties together and assists in negotiating contracts between them', following the definition as stated in Webster's New Standard Dictionary. In our opinion, the evidence in the instant case definitely brings the appellant within the classification defined in the aforesaid definition. Other than for such definition, however, Rattray v. W. P. Brown & Sons Lumber Co., supra, is of little, if any, aid in the determination of this case, for the two are clearly distinguishable upon their facts. Here, the testimony tends to prove that under the terms of the alleged contract, appellant was obligated not only to cruise timberlands of B. S. Langham, but also agreed to endeavor to find buyers for same, and to assist in the negotiations for the sale of that timber. In the Rattray v. W. P. Brown & Sons Lumber Co. case, the plaintiff had nothing whatever to do with the cruising of timber. The sole duty of the plaintiff in that case, according to his contract, was to locate available timberlands and to report the presence of same to defendants. He was not hired to assist in any negotiations of sale, or even to bring the parties together. In short, recovery allowed the plaintiff in Rattray v. W. P. Brown & Sons Lumber Co. supra, was based...