Wegmann v. Mannino

• Decision Date: 19 May 1958
• Docket Number: No. 16720.,16720.
• Citation: 253 F.2d 627
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: William A. WEGMANN, Appellant, v. Nicholas MANNINO et al., Appellees.

253 F.2d 627 (1958)

William A. WEGMANN, Appellant, v. Nicholas MANNINO et al., Appellees.

No. 16720.

United States Court of Appeals Fifth Circuit.

April 2, 1958.

Rehearing Denied May 19, 1958.

Howard P. Rives, Clearwater, Fla., for appellant.

Wm. C. McLean, Tampa, Fla., for appellees.

Before HUTCHESON, Chief Judge, and BORAH and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment dismissing appellant's suit for specific performance of a contract involving the development and sale of a subdivision on the ground that appellant had failed to register as a real estate broker under the Florida law.

In his brief here appellant does not dispute the legal conclusion that if his contract required him to perform acts which under the Florida statute would make him a real estate broker, then the contract would be void. Both parties proceed on the assumption that the failure of a person who engages in such activities without obtaining a broker's license is denied the right to recover compensation earned by the doing of such prohibited acts. This is doubtless due to the express terms of the statute making such commissions uncollectible and also to a recognition by appellant as well as appellees that the real estate brokers' statute is designed to effectuate an important public policy in Florida that would place real estate brokers under the strictest possible regulation; that only qualified persons of good character should be permitted to qualify; and that the public interest requires that violations of the statute be penalized not only as criminal acts of the misdemeanor class, but also by a forfeiture of the commission. That this is a proper exercise of the police power of the state has been expressly held by the Florida Supreme Court in State ex rel. Davis v. Rose, 97 Fla. 710, 122 So. 225.

Appellant does not cite a single Florida case to aid us in determining whether his contract is a contract which requires him to perform the acts of a real estate broker. We must therefore look to the exact terms of the agreement and compare them with the language of the statute.¹

The complaint alleged that appellant and appellees had entered into a contract under the terms of which the appellees were to purchase 68 acres of land, and appellant, "as agent" was to perform the following services:

"1. Immediately after the land is purchased, the Agent will have the land laid out into lots, the size of which will be designated by the Owner. All surveys, water, sewer, and street improvements will be made at the direction and supervision of the Agent.

"2. Upon the completion of the surveys the Agent will set up a field office, employ suitable help, salesmen, or brokers, set up signs, advertise and sell the lots; all of the expenses for the items set forth in this paragraph shall be paid for by the Agent.

"3. All costs for surveys, sewer, water, plotting out lots, and streets will be paid for by the Owner as they accrue.

"4. The Owner shall set the prices for all lots, down payments required, and terms of sale and said prices shall continue to be in effect until the total price of the land is paid for by the Owner. When the total price of the land is paid for, the prices shall be set by the mutual consent of the parties.

"5. All agreements of sale, contracts and forms will be prepared by the Owner and used by the Agent.

"6. The Agent shall immediately upon the sale of the lots send copies of all papers pertaining to said sale together with any and all moneys received to the Owner; and the Agent hereby agrees to allow the Owner to inspect and examine any and all records or papers pertaining to the business.

"7. The Agent agrees to personally or through qualified representation perform all of the duties and obligations of this agreement during the term thereof, which shall continue until all of the lots are sold, and shall be personally responsible for the operation and conduct of the business of selling, supervising, and performing the obligations of this agreement until completion."² (Emphasis added.)

Appellant makes five contentions in assigning error to the judgment of the trial court:

"1. That the Court erred in finding that the contract between the Appellant and the Appellees violated Section 475.01 of the Florida statutes and was voided and unenforceable under prohibition of Section 475.41.

"2. The Court erred in failing to find that the terms of said contract were sufficient to show an agreement of Joint Venture.

"3. The Court erred in ruling that Appellant was barred as a matter of law from recovery for services rendered and performed other than sale or sales supervision.

"4. The Court erred in failing to find that Appellant\'s contract was sufficient to show an ownership in the property, thereby making said contract an exception to Section 475.01 of the Florida statutes.

"5. The Court erred in denying unto Appellant a Quantum Meruit Recovery and Equitable Relief."

First, as to the first contention, as we have stated above, appellant impliedly recognizes that if the contract between appellant and appellees violated Section 475.01 of the Florida Statutes, it would be void and unenforceable. In his complaint appellant alleges that he had partially complied with his obligations under the contract and that "during the period of plaintiff's development and sales effort lots in Harbor View Villas subdivision have been sold by him in the aggregate amount of approximately $25,000." (Emphasis added.) Upon the trial of the case below the plaintiff introduced evidence which the court said "established his cause of action * * * sufficiently to shift the burden to the defendants to show plaintiff's failure to perform or a breach by the plaintiff of the conditions of the agreement so as to preclude the summary dismissal of his complaint." The court thereupon found, however, that "the services required of plaintiff under the agreement are for those acts or services enumerated in subsection 2 of Section 475.01, Florida Statutes, which are rendered invalid by Section 475.41, Florida Statutes, unless the plaintiff shall have complied with * * * (Chapter 475 Florida Statutes)" in that he had not registered either as a real estate broker or salesman.

We think it plain that this finding by the trial court is correct in that it is clear that appellant did "for a compensation or valuable consideration directly or indirectly paid or promised" agree to "sell * * * offer * * * or negotiate the sale of any real property" and "advertise or hold out to the public * * * that he (was) engaged in the business of * * * selling * * * real estate * * * of others." And further that he agreed to "direct or assist in procuring of prospects, or the negotiation or closing of * * * transaction(s) which does or is calculated to result in a sale, exchange or leasing thereof." It furthermore appears that the compensation which appellant was to receive under his contract was for the performance of such services and that under the terms of Section 475.41 no such contract for compensation is valid.

The fact that appellant was permitted to hire salesmen and brokers who themselves might be legally licensed persons does not change the fact that his entire contract was to supervise and control the subdividing, advertising and selling of a subdivision which the statute prohibited to all but licensed persons.

The second and fourth grounds for appeal are considered together. Appellant contends that the Court erred in failing to find that the terms of the contract were sufficient to show an agreement of joint venture. If the contract could be construed as constituting the parties joint adventurers this would not of itself avail appel...