Houston v. Boagni , 1 McGl. 164 ( 1881 )

Moore, Judge,

after stating pleadings and facts. — Tbe ruling of tbe Court (upon tbe first bill) is based upon tbe .ground that tbe evidence is irrelevant. We are of tbe same opinion. The contract sued on was made in the year 1880,. and not in either 1878 or 1879.

The next bill is to the ruling of the court overruling defendant’s objections to the admissibility of the depositions of Louis and Oscar Philips, offered in evidence by plaintiff. The objections were; 1st, that parol evidence to prove authority to sell real estate is inadmissible; 2d, that parol evidence is inadmissible to prove any contract or agreement relative to immovables. The ruling was correct, and for the reasons given by the judge a quo.

We do not deem it necessary to notice the other bills of exception found in the. record, except the one applicable to the overruling by the court of defendant’s exception to plaintiffs’' right of action, grounded upon their failure to procure a license for 1880. The ruling, we think, was correct. If plaintiff was obliged to take out any license at all, it was under the law of 1880, No. 119 of the Acts of the General Assembly for that year, approved April 10th, 1880. This law does not prescribe-as a penalty for carrying on business without a license that the person so offending shall not sue for the recovery of fees- or compensation due him for services rendered. The only penalty provided for is that mentioned in the seventeenth section thereof; and that is the stopping of the business or occupation carried on by the delinquent, to be enforced by legal process. This act repeals all other laws or parts of laws, inconsistent or in conflict with it: therefore, no other or different penalties established by any other act of the Legislature,, passed at any time anterior to the passage of this one, could be enforced against persons violating the same.

But it is shown by the testimony of the tax collector that he could not have given plaintiffs a license for 1880, at the time the contract was made between them and defendant and the services by them had been rendered. It would have been a vain thing, therefore, for them to have applied for a license.

The evidence adduced on the trial satisfies us that plaintiffs performed faithfully their part of the contract, and that defenclant has failed and refused to perform his part thereof; that the failure to sell the plantation, for which a purchaser had been secured, was due to defendant’s refusal to make the title he had promised to such’purchaser, and not to any act of plaintiffs.

Plaintiffs put defendant in default when they brought the purchaser to him, and the purchaser signified his readiness to take the property upon the terms ancl conditions agreed upon. There was no necessity for plaintiffs making a tender of any money to defendant for the purpose of putting him in default.

All the way through this transaction the defendant seems to have had it well understood that the sale must bring him $4000 net. He and his son, in their testimony, say that it was understood between him and plaintiff that defendant was to bear none of the expenses incident to the perfecting of title by a purchase from defendant of certain mortgage notes on the property and their foreclosure by the purchaser. The evidence, establishes the probable expense of foreclosing said mortgage at about $300, not including sheriff’s costs and costs of advertisement. This matter of the purchase of the mortgage notes and their foreclosure on the property seems to have been a modification of the original propositions of defendant, agreed to by the purchaser, in presence of plaintiff We do not think the verdict of the jury and the judgment of the lower court should be disturbed.

Judgment affirmed.