Morris v. John Price Associates, Inc. ( 1979 )

ELLETT, Chief Justice

(dissenting).

While the letter signed by the vice president of the defendant corporation and given to Rob Morris had the name of Gump & Ayers following that of Rob Morris in the upper corner of the page, the letter itself was directed to Rob Morris. The evidence clearly shows that the letter was the culmination of dealings between Rob Morris and the president of the defendant corporation.

The letter and the promise contained therein said “Dear Rob: This letter is to assure you that we will cover you on a 6% commission . . .’’It did not state: “Dear Rob: This letter is to assure you that we will cover them (Gump & Ayers) on a 6% commission, . . . ” (Emphasis added).

There are certain sections of Utah Code Annotated 1953, which have a bearing on this matter. Those are:

(a) 61-2-10. It shall be unlawful for any real estate salesman to accept a commission or valuable consideration for the performance of any of the acts herein specified from any person, except his employer, who must be a licensed real estate broker.

(b) 61-2-18. (a) No person, partnership, association or corporation shall bring or maintain an action in any court of this state for the recovery of commission, a fee, or compensation for any act done or service rendered the doing or rendering of which is prohibited under the provisions of this act to other than licensed real estate brokers, unless such person was duly licensed hereunder as a real estate broker at the time of the doing of such act or the rendering of such service, (b) No real estate salesman shall have the right to institute suit in his own name for the recovery of a fee, commission, or compensation for services as a real estate salesman except where the action is against the broker but any such action shall be instituted and brought by the broker with whom the salesman is connected.

Under these statutes it clearly appears that the letter addressed to and handed to Rob Morris (even if it be a contract) is unenforceable and he cannot bring an action based upon it. The contract is a promise to pay “Rob Morris,” who is not a real estate broker, and is therefore void. Since it is void as to him, it cannot be made valid by his principal who could claim only under and through him.

Gump & Ayers did nothing towards the securing of a lease for the defendant. Only Rob Morris did anything at all, and he quit being an agent of Gump & Ayers before the defendant itself negotiated the lease. Even if Gump & Ayers had any rights while Rob Morris was their agent they lost those rights by abandoning the contract (if any) before the lease was secured by the defendant. They did not know the terms of the lease nor did they even know one had been signed.

It is difficult for me to see how Gump & Ayers have any legal basis to claim a commission in this case.

I would reverse the judgment and award costs to the appellant.