Summary
In Strumpf v. State, 31 Ala. App. 409, 18 So.2d 104 (1944), the plaintiff was not only a regular employee of the owner of the property, but was also selling the property in the regular course of business as an employee and not entitled to a commission.
Summary of this case from Springer v. RosauerOpinion
6 Div. 52.
April 11, 1944. Rehearing Denied May 9, 1944.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
P.S. Strumpf was convicted of a violation of Code 1940, Tit. 46, § 298, and he appeals.
Reversed and rendered.
See, also, 243 Ala. 441, 10 So.2d 461.
Section 299, Title 46, of the Code, referred to in opinion, is as follows:
"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. The term 'real estate' as used in this chapter shall include leaseholds and other interests less than leaseholds. A real estate salesman within the meaning of this chapter is any person who, for a compensation or valuable consideration, is employed either directly or indirectly by a real estate broker to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase or sale or exchange of real estate, or to lease, to rent or offer for rent any real estate, or to negotiate leases thereof, or of the improvements thereon, 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, or exchange real estate, or leasing, or renting, or offering to rent real estate, 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 and the investment therein, nor shall the provisions of this chapter apply to persons acting as attorney-in-fact under a duly executed power of attorney from the owner authorizing the final consummation by performance of any contract for the sale, leasing, or exchange of real estate, nor shall this chapter be construed to include in any way the services rendered by an attorney-at-law, in the performance of his duties as such attorney-at-law; nor shall it be held to include, while acting as such, a receiver, trustee in bankruptcy, administrator or executor, or any person selling real estate under order of court, nor to include a trustee acting under a trust agreement, deed of trust, or will, or the regular salaried employees thereof."
The indictment is as follows:
"1. The Grand Jury of said County, charges that before the finding of this indictment P.S. Strumpf, whose name is otherwise unknown to this Grand Jury and within twelve months before the finding of this indictment, did, for a valuable consideration or compensation, as a whole or partial vocation, sell or offer to sell, buy or offer to buy, lease or offer to lease, rent or offer to rent, or otherwise negotiate the sale, purchase, or exchange of real estate or an interest therein as agent or salesman of another without having first procured a license from the Alabama Real Estate Commission, so to do as provided by law and contrary to law.
"2. The Grand Jury of said County further charges that, before the finding of this indictment, P.S. Strumpf, whose name is otherwise unknown to this Grand Jury and within twelve months before the finding of this indictment, did, for a valuable consideration or compensation, as a whole or partial vocation, sell or offer to sell, buy or offer to buy, lease or offer to lease, rent or offer to rent, or otherwise negotiate the sale, purchase, or exchange of real estate or an interest therein as agent or salesman of another without having first procured a license, so to do as provided by law and contrary to law.
"3. The Grand Jury of said County further charges that, before the finding of this indictment, P.S. Strumpf, whose name is otherwise unknown to this Grand Jury and within twelve months before the finding of this indictment, did, for compensation or a valuable consideration, sell or offer to sell, rent or offer to rent, buy or offer to buy, lease or offer to lease, or otherwise negotiate the sale, purchase, or exchange of real property or an interest therein as a real estate salesman or a real estate broker without having first procured a license from the Alabama Real Estate Commission, so to do as provided by law and contrary to law,
"4. The Grand Jury of said County further charges that, before the finding of this indictment, P.S. Strumpf, whose name is otherwise unknown to this Grand Jury and within twelve months before the finding of this indictment, did, for compensation or a valuable consideration, sell or offer to sell, rent or offer to rent, buy or offer to buy, lease or offer to lease, or otherwise negotiate the sale, purchase, or exchange of real property or an interest therein as a real estate salesman or a real estate broker without first having procured a license, so to do as provided by law and contrary to law, against the peace and dignity of the State of Alabama."
Horace C. Wilkinson, of Birmingham, for appellant.
Counts 1 and 2 of the indictment, charging an act committed by defendant as agent or salesman, are fatally defective because the alternative "as agent" is wholly without the statute, and each alternative of an indictment must be good and must state a complete offense. Abercrombie v. State, 8 Ala. App. 326, 62 So. 966; Fason v. State, 19 Ala. App. 533, 98 So. 702; Arrington v. State, 23 Ala. App. 351, 125 So. 799; Mastoras v. State, 28 Ala. App. 123, 180 So. 113; Watson v. State, 140 Ala. 134, 37 So. 225; Hill v. State, 145 Ala. 58, 40 So. 654; State v. Nix, 165 Ala. 126, 51 So. 754. Counts 3 and 4 are defective in not averring that defendant was employed either directly or indirectly by a real estate broker or that he was so acting for others. Code 1940, Tit. 46, § 299. The name of defendant's employer, whether broker or principal, must have been averred, so defendant would have notice of precisely what charge he was called on to defend. Lashley v. State, 236 Ala. 28, 180 So. 724; Buckley v. State, 19 Ala. App. 508, 98 So. 362; Crawford v. State, 112 Ala. 1, 21 So. 214; Dorsey v. State, 111 Ala. 40, 20 So. 629; Harrison v. State, 24 Ala. App. 9, 129 So. 718. The indictment is defective in that it does not negative exceptions to general provisions of the statutes. Carson v. State, 69 Ala. 235; Bell v. State, 104 Ala. 79, 15 So. 557; Jetton v. State, 29 Ala. App. 134, 195 So. 283; State v. Dodd, 17 Ala. App. 20, 81 So. 356; Emmonds v. State, 87 Ala. 12, 6 So. 54. Defendant's employer was not shown by the agreed facts to be a broker for others, but was shown to have been the owner merely disposing of its own property and in no sense acting as a middleman to bring two principals together. Code, Tit. 46, § 299; Allison v. Fuller-Smith Co., 20 Ala. App. 216, 101 So. 626; Id., 211 Ala. 616, 101 So. 629; King and Boozer v. State, 241 Ala. 557, 3 So.2d 572; Handley v. Shaffer, 177 Ala. 636, 59 So. 286. Defendant was not employed by a broker; moreover, he was regularly employed as a salesman and was within the exception. Code, § 299, supra.
Wm. N. McQueen, Acting Atty. Gen., and Geo. C. Hawkins, Asst. Atty. Gen., for the State.
When an indictment follows the terminology of the statute, or sufficiently complies therewith, or describes the offense with greater particularity than the statute, it is sufficient and a demurrer thereto is correctly overruled. Gideon v. State, 28 Ala. App. 177, 181 Ala. 126; Dye v. State, 28 Ala. App. 473, 188 So. 74; Smith v. State, 63 Ala. 55; Wilson v. State, 61 Ala. 151; Murrell v. State, 44 Ala. 367; Harper v. State, 20 Ala. App. 324, 102 So. 55; 12 Ala. Dig., Indictment Information, page 60, § 110(3). It is immaterial that counts of the indictment did not include definition of real estate salesman or broker, the terms being defined by the statute. Use of the language of the statute is all that is required. Code 1940, Tit. 46, § 299. When the offense is the violation of a statute imposing a license, whether for revenue or regulatory purposes, the charge that defendant performed the acts complained of without such license is sufficient. Gullatt v. State, 18 Ala. App. 21, 88 So. 371; Carter v. State, 3 Ala. App. 112, 57 So. 1022; Smith v. State, 8 Ala. App. 352, 63 So. 28. It was not necessary that the indictment negative defendant's coming within the exception; this was matter of defense. Dorgan v. State, 29 Ala. App. 362, 196 So. 160. Offenses of same character may be joined in same court in alternative. Code, Tit. 15, § 249. Use of the word "agent" in the counts does not render them bad. Words other than statutory words may be used so long as the substituted words convey the same meaning. Code, Tit. 15, §§ 230, 233, 234. But if counts 1 and 2 were subject to demurrer for use of the alternative "agent", counts 3 and 4 were good, and the verdict was referrable to the good counts. Dorgan v. State, supra; Handy v. State, 121 Ala. 13, 25 So. 1023; State v. Brantley, 27 Ala. 44; Sup.Ct. Rule 45, 7 Code, p. 1022. A person who holds himself out to the public as being, and comes within the classification and performs the duties of, a real estate broker or salesman is subject to the regulations and license imposed upon real estate brokers and salesmen notwithstanding the fact that he sells, rents, or leases the property of only one person or corporation. Code, Tit. 46, § 299; Marx v. Lining, 231 Ala. 445, 165 So. 207; Knight v. Watson, 221 Ala. 69, 127 So. 841; Rattray v. W.P. Brown Sons Lbr. Co., 29 Ala. App. 93, 192 So. 285; Seitz v. Troidle, 171 Misc. 632, 13 N.Y.S.2d 465; Carkonen v. Alberts, 196 Wn. 575, 83 P.2d 899, 135 A.L.R. 209; Bates v. Ore. Am. Lbr. Co., 285 F. 666; Weinshenker v. Epstein, 176 Ill. App. 104, 104 N.E. 106; Phelan v. Hilda Gravel Min. Co., 203 Cal. 264, 263 P. 520, 56 A.L.R. 476; Black Forest Realty Inv. Co. v. Clarke, 86 Colo. 454, 282 P. 878.
Appellant was convicted in the circuit court of selling real estate without a real estate salesman's or broker's license as required by Chapter 14, Title 46, Sections 298 et seq. of the 1940 Code of Alabama. (The report of the case will contain Section 299.)
Trial was upon an agreed statement of facts which is incorporated in the record as the bill of exceptions. This agreed statement of the evidence shows: Polakow's Realty Experts, Inc., a corporation doing business in Bessemer, was the owner of certain real estate known as Garden Highlands and subdivided the property into lots and put these lots on the market for sale, through its regularly employed agents, some working for a straight salary and others on commission. The exclusive business of said corporation, during the proscriptive period of the indictment, was the purchasing and subdividing of acreage into lots and the selling of said lots to the public through its said employees. Appellant was selling said lots on commission and devoted his entire time to this employment. He was employed by no one else. This was his exclusive vocation and his duties were to find prospects and sell the lots owned by said corporation, making contracts of sale in the name of said corporation as owners thereof. The agreed stipulation of facts further recites that appellant was a regular employee of said corporation.
The overall question presented by the appeal is whether or not, under this statement of the evidence, appellant would be liable for a State license as a real estate salesman or broker.
By the terms of the act (Section 299) a "real estate broker", to be liable for a license for selling real estate, must "for a compensation or valuable consideration, sell(s) * * * real estate * * * for others", and a "real estate salesman", to be so liable, must be "employed" by such real estate broker.
Manifestly, the corporation was not a broker within the meaning of the act because it did not (to use the language of the act) "for a compensation or valuable consideration, sell(s) or offer(s) for sale, buy(s) or offer(s) to buy, negotiate(s) the purchase or sale or exchange * * *, or * * * lease(s) or offer(s) to lease, rent(s) or offer(s) for rent, any real estate or the improvements thereon for others." In other words, the corporation was not a broker because it was engaged in doing no business for others. It was selling its own real estate exclusively. Appellant, therefore, was not a real estate salesman (not employed by a broker) and therefore was not liable for a real estate salesman's license.
But was he a broker under the statute? We think not, under the statement of facts, because it was therein agreed that appellant was a regular employee of the corporation, and the following proviso in Section 299 exempts from liability the corporation's regular employees with respect to the property it owned, where the sales were made, as here, by said employees in the regular course of, or as an incident to, the business of their principal, to-wit: "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 [by them], where such acts are performed in the regular course of, or as an incident to, the management of such property and the investment therein."
Such is the connotation in the observation of Mr. Justice Bouldin of our Supreme Court in the case of Knight v. Watson, 221 Ala. 69, 127 So. 841, 842, where this same proviso was under consideration. It was there pointed out that "the above-quoted exception is limited to regular employees performing acts in the regular course of or as incident to the management of the property", but does not exempt a person who for profit takes occasion to make "a sale of property as to which he has no relation as a regular employee of the owner."
This construction is also consonant with the universal principle that a corporation acts, and can only act, through its agents. It is not easily conceivable that the Legislature would enact that a principal (as owner) could sell its own property without responsibility under the act (though to sell it must do so through its agents), but that it could not do so when acting by and through its duly constituted and regularly employed agents. To adopt this illogical construction would have the effect of proscribing sales of real estate by corporation owners and thereby discriminating against them, meanwhile leaving free of statutory control individual persons selling their own real estate.
This interpretation likewise comports with the generally accepted distinction between an agent, regularly employed by one principal and devoting his entire time to this employment, and a broker, holding himself out to the public to engage, on a commission, to negotiate contracts relative to property indiscriminately and regardless of ownership.
"A broker is distinguished from an agent, in that a broker holds himself out for employment by others, and acts as an intermediate negotiator between the parties to a transaction, and in a sense is the agent of both parties, whereas the element of exclusiveness of representation of the principal by which he is employed enters into the employment of an agent." 12 C.J.S., Brokers, p. 8, § 3; Stratford v. City Council of Montgomery, 110 Ala. 619, 625, 20 So. 127; City of Lake Charles v. Equitable Life Assurance, 114 La. 836, 38 So. 578; Rattray v. W.P. Brown Sons Lumber Co., 29 Ala. App. 93, 96, 192 So. 285.
Another observation with respect to the proviso aforesaid is perhaps timely. As regards appellant, he must be ruled as exempt from license because the evidence, according to agreement of the parties, stipulated that he was a "regular employee" of the owner of the property, selling said property in the regular course of business as such employee. This stipulation in the evidence that he is such regular employee rescues him from liability under the act and makes it unnecessary to here discuss the distinction between an agent regularly employed by and acting for a principal and an independent contractor selling on commissions. For some authorities dealing with the distinction, see Magnolia Petroleum Co. v. Pierce, 132 Okl. 167, 269 P. 1076, 61 A.L.R. 223 et seq.; In re Murray, 130 Me. 181, 154 A. 352, 75 A.L.R. 725 et seq.; Nichols v. Hubbell, 92 Conn. 611, 103 A. 835, 19 A.L.R. 226 et seq.; Huebner v. Industrial Comm., 234 Wis. 239, 290 N.W. 145, 126 A.L.R. 1113; P.F. Collier Son v. Hartfeil, 8 Cir., 72 F.2d 625.
It should also be noticed that had the corporation been engaged in selling real property for others, rather than that of exclusively selling its own, then it would have been liable under the statute as a broker and appellant as a real estate salesman. Sec. 299. The evidence in the record, however, presents no such situation.
The argument of learned counsel representing the State that certain evil results might entail by exempting from State control such regular employees of real estate dealers, whose exclusive business is selling their own real property, leaves us unconvinced that a different interpretation, than that hereinabove, should be accorded the statute. Sufficient is the response that it is the province of the courts to construe and apply the law as it is, not as it might or should have been.
It is contended for appellant that all four counts of the indictment were subject to the demurrers interposed.
An obvious defect in Counts 1 and 2 is the denomination of the defendant "as agent" or salesman. The alternative averment, "as agent", is wholly without the statute and its inclusion in the counts rendered them defective. Abercrombie v. State, 8 Ala. App. 326, 62 So. 966; Mastoras v. State, 28 Ala. App. 123, 126, 180 So. 113; Watson v. State, 140 Ala. 134, 37 So. 225. A salesman, selling for others, may be an agent, but every agent is not a real estate salesman under the statute. Such is the rationale in Stratford v. City of Montgomery, 110 Ala. 619, 625, 20 So. 127, 128, and Portsmouth Cotton Oil Ref. Corp. v. Madrid Cotton Oil Co., 195 Ala. 256, 261, 71 So. 111.
Counts 3 and 4, however, charge the offense in substantial statutory language and are impervious to the asserted demurrers. 12 Ala. Dig., Indictment and Information, 10(3); Gideon v. State, 28 Ala. App. 177, 181 So. 126; Harper v. State, 20 Ala. App. 324, 102 So. 55.
The insistence that these latter two counts are defective for failing to aver the fact that the property sold was not owned by the defendant or his employer is without merit. The provision creating this exemption or exception is in a separate clause of the statute and under the adjudicated cases it was unnecessary to negative by averment such proviso or exception. Dorgan v. State, 29 Ala. App. 362, 196 So. 160; Bell v. State, 104 Ala. 79, 15 So. 557; Carson v. State, 69 Ala. 235; Miller v. State, 16 Ala. App. 534, 79 So. 314; Bryan v. State, 18 Ala. App. 199, 89 So. 894; McLeod v. State, 8 Ala. App. 329, 62 So. 991; Clark v. State, 19 Ala. 552; Hyde v. State, 155 Ala. 133, 46 So. 489; Davis v. State, 39 Ala. 521.
Nor was it necessary to aver that the alleged acts were performed "for others". The allegation that the acts were performed "as a real estate salesman or a real estate broker" suffices because, as demonstrated hereinabove, these defined persons must, under the statute, be engaged in selling "for others."
We are also requested to consider the constitutionality, vel non, of the statute. The Supreme Court has already ruled in regard thereto (State v. Polakow's Realty Experts, 243 Ala. 441, 10 So.2d 461), so discussion by us is pretermitted (Code 1940, Title 13, Sec. 95).
The learned trial court adjudged appellant guilty under the agreed facts. Due to our contrary conclusion, the judgment is here reversed and the cause remanded.
Reversed and remanded.
On Rehearing.
On consideration, it is our further conclusion that, under the prevailing rule, a judgment should here be rendered discharging the defendant, rather than remanding the cause. It is so ordered. State v. Southern Natural Gas Corp., 233 Ala. 81, 170 So. 178; Hoffman v. State, 25 Ala. App. 640, 146 So. 920.
Reversed and rendered.