Sherman v. Welsh

Argued December 15, 1925. This was an action in assumpsit brought by a real estate broker for a definite commission which, it was averred, defendants had agreed to pay her upon the consummation of a purchase by them of certain real estate.

In her statement of claim plaintiff averred that she was a duly licensed real estate broker. Defendants did not deny this averment but called on her to produce her license at the trial. In presenting her case in chief plaintiff testified she was a real estate broker, and produced her license, which showed on its face it had not been issued until over a month after the rendering of the services sued for and the consummation of the contract of purchase. Defendants presented a point for binding instructions which the court refused, apparently on the ground that the matter had not been raised in the affidavits of defense filed.

No useful purpose will be served by a discussion of the question raised by the learned counsel for appellee, to wit, the soundness of the rule enunciated by the Supreme Court, that the payment of a tax and the securing of a license is a condition precedent to the lawful transaction of business by a real estate broker; that he cannot have the aid of the courts to recover commissions which were earned before he had paid his tax and received a license: Luce v. Cook, 227 Pa. 224; Meyer v. Wiest,250 Pa. 573. The law establishing this Court provides (Act of June 24, 1895, P.L. 212, sec. 10), that "Upon any question whatever before the said court the decision of the Supreme Court shall be received and followed as of binding authority." And we cheerfully conform to that direction. See Webb v. Rachmil,75 Pa. Super. 193.

It thus appeared from the plaintiff's own case that her claim as presented rested upon an illegal foundation, and irrespective of the defenses set up in the affidavits of defense, the defendants were entitled to take advantage of it: Josephson v. Weintraub, 78 Pa. Super. 14, 18; Continental Guaranty Corp. v. Hughes, 81 Pa. Super. 264; Nudleman v. Travelers Ins. Co., 84 Pa. Super. 589, 591; and the court erred in not so ruling. The first and second assignments of error are sustained. We have less hesitation in doing this, because a review of the testimony discloses no competent evidence of a partnership between the defendants in the purchase of real estate, or of a joint contract by them with the plaintiff as respects the property involved, or even that they became the purchasers of this property. Plaintiff's contract with Cravitz, assuming to act for himself and Welsh, did not extend to a purchase by Welsh and Lieberson, in the absence of proof that the latter was acting for Cravitz.

It is not necessary to discuss the remaining assignments. The judgment is reversed and is now entered for the defendants.