Salisbury v. Alskog

Respondent, by the judgment appealed from, was allowed the recovery of a commission on the sale of a lease, good will and the furniture of a rooming house in the city of Tacoma. The judgment debtors, appealing from that judgment, assign a number of errors, one of which is that the respondent was not the procuring cause of the sale, but upon this point we find the trial court was well sustained by the evidence. We find it necessary to discuss only one of the other errors assigned.

[1] The contract employing the agent was in writing and complied with the statute of frauds. It was entered into prior to the enactment of ch. 129 of the Laws of 1925, Ex. Sess., p. 218, but there is a serious dispute of fact as to whether the sale was made before or after that act took effect. On this question, the trial court found in favor of the respondent, but, as we interpret the act, that is immaterial.

The act in question provides, in § 4:

"Within the meaning of this act, a real estate broker is a person who, for a compensation or promise thereof, performs one or more acts of selling or offering for sale, buying or offering to buy, negotiating or offering to negotiate, either directly or indirectly, whether as an employee of another or otherwise, the purchase, sale, exchange, lease or rental of real estate or interest therein for another person." Laws of 1925, Ex. Sess., p. 219, § 4. [Rem. 1927 Sup., § 8340-4.]

It further provides for the licensing of real estate brokers, makes it unlawful for any person to act as a real estate broker without a license, and § 20 reads:

"No suit or action shall be brought in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in section 5 hereof, without alleging and proving that the plaintiff was a duly licensed real estate broker at the time the alleged cause of action arose." Laws of 1925, Ex. Sess., p. 226, § 20. [Rem. 1927 Sup., § 8340-20.]

This is a penal act and must be strictly construed. So construing it, we are unable to escape the conclusion that the selling of a lease or a leasehold interest in real estate does not come within the terms of the statute. Prior to the enactment of this statute, the law was clearly settled that a leasehold interest is personal property which may be conveyed as such.Myers v. Arthur, 135 Wash. 583, 238 P. 899, and cases there cited. That being the settled law of the state, it is inconceivable that the legislature should attempt to change it by anything less than clear and unequivocal language to that effect. When the quoted portion of § 4 is carefully read, it is apparent that what the legislature said, and intended to say, was that one who rented or leased real estate for another was a broker within the act (the punctuation clearly indicates that the words "lease or rental" mean but one thing, i.e., the procuring of a tenant), and that nothing but a forced construction could apply the words "selling" and "buying" to a lease.

Since the act makes what was theretofore lawful, a misdemeanor, we cannot go beyond the fair intendment of the language used and thereby make unlawful an act that the legislature has not itself clearly made so. It follows that the judgment appealed from is right, and it is therefore affirmed.

MACKINTOSH, C.J., HOLCOMB, MAIN, and ASKREN, JJ., concur.