Baliles v. Bryant

Brune, C. J., delivered the opinion of the Court. This is an appeal by the plaintiff below from an order granting a motion for a judgment non obstante veredicto and directing the entry of judgment for the' defendant. . The. suit was brought to recover one-half of the commissions on- the sale of - several lots improved by a cottage at Beverly ,Beach.- The plaintiff-appellant, Mrs. Lottie V. Baliles,- was a real estate salesman,.who had been employed by the defendant-appellee, George E; Bryant, a licensed real estate broker. The sale; price of the property was $15,000, commissions thereon.. at 5% amounted to $750, and there was no dispute that, if the plaintiff was entitled to recover at all>-.she was entitled to one-half of the commissions, namely, $375.

There was-some question as to whether or: not ,the plaintiff was authorized to act as a real estate,.salesman at the time when the contract of sale was entered ¡unto. The appellee has blown hot and cold on this question. Though there was much testimony on the subject) during the cross-examination of the appellee his counsel denied that the appellee was “making a contentioti about the license,” but in his motion for a directed verdict he specifically invoked Code (1951), Article 56, Section 235, which bars suits for compensation for any act or service the doing or rendering of which is prohibited to persons other than licensed real estate brokers or salesmen, unless the person asserting the claim was duly licensed as such broker or salesman prior to the time of "offering to perform any such act or service or of procuring any agreement for the payment of compensation for = such ³³⁵ act or service. However, the appellee took no exceptions to the instructions of the trial court relating to this (or any other) phase of the case, nor did his motion for a judgment n. o. v. refer to this question.

Since the appellee filed no brief and was not represented in this Court, his position on this point remains somewhat obscure; but his failure to renew his objection on this score in his motion for a judgment n. o. v. strongly suggests that he abandoned the point and thereby returned to the position formerly stated by his counsel. Whatever his ultimate position may have been, the record shows that the plaintiff was duly licensed as a real estate salesman in the employ of the defendant in 1952. Her license expired on April 30, 1953, and there was testimony on her behalf that at the end of April or in the first part of May she paid over to the defendant the amount of the $5.00 license renewal fee for transmission to the Real Estate Commission. He denied this, but certainly the conflict of testimony was sufficient to take this issue to the jury, if the license had to be renewed at all prior to the date of the contract of sale which gives rise to this suit.

If the plaintiff’s lack of a renewal of her license was due to the failure of the defendant to send in her application and renewal fee, he would, we think, be estopped to raise the objection, even though the renewal was not actually issued until October, 1953, as appears to have been the case. The trial court submitted the case to the jury on instructions substantially in accordance with these views, ahd the verdict of the jury was in favor of the plaintiff. We find it unnecessary in view of the foregoing to decide the question as to whether or not it would have been necessary for the plaintiff to apply for a renewal before the date of the contract of sale in order to avoid the bar of Section 235 of Article 56 of the 1951 Code. This would involve the construction of Sections 234, 235, 237 and 238.

See an interesting annotation on the effect of the absence of a license as affecting a broker’s right to compensation in 169 A. L. R., beginning at 767, ³³⁶ and the case to which that annotation is appended, which involved a somewhat different statute from that in force in Maryland. On the merits of the claim we think that the same rule is to be applied as between the defendant employer-broker and the plaintiff employee-salesman as would apply between an owner and a broker. See Bowie v. Martin, 199 Md. 58 , 85 A. 2d 786 , where the same rule was applied as between a broker to whom the owner had an exclusive agency and another broker who asserted an agreement with the first broker under which the second claimed to be entitled to one-half of the commissions on a sale of the property there in question. There was a conflict in the testimony as to whether or not the plaintiff was the procuring cause of the sale.

The purchasers were a Mr. and Mrs. Collison who lived in the vicinity of the cottage which they contracted to buy. The defendant testified that negotiations leading up to the contract