Horsley v. Woodley , 12 Ga. App. 456 ( 1912 )

Pottle, J.,

dissenting. The only defense filed in the trial court was a general denial of any indebtedness. I do not think the defense that the plaintiff had no license as a real-estate dealer could be raised under the plea of the general issue. A general denial of indebtedness simply raises the question that the defendant does not owe the amount sued for. In the present instance he does owe it, because the plaintiff performed the services which he agreed to perform, and the defendant agreed to pay the sum sued for. But in the argument of counsel in this court it is contended that there is ■ a special reason why the defendant should not be required to pay, or, rather, why the plaintiff should not be permitted to collect, the amount sued for; and that is that he has engaged in the business of a real-estate dealer without having registered with the ordinary and paid the license required by law, and so has been guilty of a misdemeanor. If the defendant wishes to urge the failure of the plaintiff to register and pay the license, as a reason why he should not be allowed to recover, he ought, in my opinion, to set it up by way of special defense. A plea of the general issue did not put the plaintiff on notice that the defendant intended to rely upon any such special defense as the one above mentioned. Apparently the point was made for the first time in the Court of Appeals. It is manifestly an afterthought, and the point was not discovered until after the decision of this, court in Ford v. Thomason (while the present case was pending). Indeed, it was not insisted on in the original briefs of the counsel for the plaintiff in error. In the argument on rehearing attention was called to this fact and counsel for the defendant in error insisted that a point ought not to be raised by this court when it was not raised in the court below, nor even insisted upon in this court by counsel for the plaintiff in error. In this I think the counsel is right, and that the point upon which the court bases the reversal is really not involved in the case.

But further than this, I do not think Woodley is,such 'a real-estate agent as that he was required to obtain a license. -This question must be determined solely by the nature of the transaction between Horsley and himself. It makes no difference that Wood.ley, generally speaking, may have been a real-estate agent, and may have, as to other transactions, engaged in the real-estate business; the question is, was he a real-estate dealer in reference to the particular transaction with Horsley for which he claims the right to recover for his services P Woodley had no connection with the owner of the land. There was no contract between them, and he could not have maintained an action against the owner for the recovery of commissions. Horsley was the real-estate agent. He simply made an agreement with Woodley that if the latter would introduce him to a purchaser, and he should consummate a sale, he would pay Woodley a certain amount of money equal to one half of his commissions. This, then, was the contract, as shown by the evidence. Woodley had no authority to negotiate a sale. He had no authority even to quote the purchaser a price. He had no authority to enter into any sort of a contract with the purchaser which would bind either Horsley .or the owner of the land. Under his contract he was simply to send to Horsley a prospective purchaser. The owner paid but one commission, and that commission was paid to Horsley. If a real-estate agent should say to another, ■“If you hear of a man who wants to buy a farm, send him to me, and if I trade with him I will pay you $100,1” I do not think the person who sent the prospective purchaser to the real-estate agent would himself be a real-estate dealer. He is not a partner of the Teal-estate agent, as was suggested in the argument, but was simply an employee of the agent. He had not the authority of a real-estate agent, nor did he perform the -duties of a real-estate agent. His relation more closely resembled that of a servant or an employee of a real-estate agent; and this court has held more than once that one employed to assist a Confederate veteran would be exempt from the payment of a license tax, upon the theory that he himself was not engaged in the business.