Owen v. Off , 36 Cal. 2d 751 ( 1951 )

CARTER, J.

I dissent.

It is conceded that plaintiff’s negotiation for the sale of the stock was a single and isolated transaction; that he was not engaged in the business of selling stock. The almost universal rule is that a license is not required under broker licensing acts for such a transaction, unless it is expressly included in the act; and therefore lack of a license does not bar recovery of a commission. (See cases cited 30 A.L.R. 858; 42 A.L.R. 1230; 118 A.L.R. 657; 169 A.L.R. 783; 12 C.J.S., Brokers, § 67, p. 156.) And that rule has been recognized in this state. In Haas v. Greenwald, 196 Cal. 236 [237 P. 38, 59 A.L.R. 1493], a sale of real estate was involved, thus invoking the Real Estate Brokers Act. The isolated transaction exception rule was urged, but the act expressly included such transactions, and, therefore, recovery of a commission was not allowed. But, the court stated, after referring to the isolated transaction rule (p. 244): “This argument, with the authorities which are cited in support of it, might have some cogency but for the express and unmistakable terms of the statute to the contrary. . . . The authorities cited in support of the appellant’s position in this regard do not sustain it, for the reason, as is well illustrated by the case of Miller v. Stevens, 224 Mich. 626 [195 N.W. 481], mainly relied upon by appellant, that the statute under review in said decision omitted this very provision which our statute contains, rendering a single act of the character defined, for a compensation, sufficient to constitute the person performing it a real estate broker.” (Emphasis added.)

The majority opinion flies squarely in the face of this rule for nowhere does the broker’s license law expressly make it applicable to a single, isolated transaction. On the contrary, from the act, the implication clearly excludes isolated deals, for, as stated in the majority opinion, sales made on behalf of a bona fide vendor of his own stock are exempted from the act. (Stats. 1917, p. 673, § 2(c).)

For the reason above stated, I would reverse the judgment.

Edmonds, J., and Schauer, J., concurred.

Appellant’s petition for a rehearing was denied March 15, 1951. Edmonds, J., Carter, J., and Schauer, J., voted for a rehearing.