Kolb v. Burkhardt

Parke, J., delivered the opinion of the Court. William A. Burkhardt, the appellee, has always had his residence and place of 'business in Baltimore County. Quite aside from the business of storekeeping in which he was engaged, he undertook to sell a farm in Baltimore County fox $40,000' net to the owner, James E. Murray, of Baltimore City, and' the purchaser to pay the- appellee $2,000 for his commissions. He procured in Baltimore a purchaser on these terms in Henry Kolb, the appellant, who resides in Baltimore City .and who is-engaged there in the real estate 'business.

The contract of purchase was also executed in Baltimore City, but nothing was inserted in reference to the commissions. Kolb denied that he was to- .pay the commissions, an'd he was sued by Burkhardt, who recovered. The only exception is on the prayers, and it is .intended to present the single question of whether such .a contract to pay commissions is rendered unenforceable by section 69>9A of the Acts of 1918, chap. 493. Article 4 of the Public Local Laws of Maryland, title “City of Baltimore,” contained certain sections', under the sub-title “Real Estate Brokers-,” which required those engaged in carrying on the business of real estate broker in Baltimore City to secure a license by paying a prescribed license fee under penalty of a fine.

Charter of Baltimore City (1915 Ed.), pp. 367, 370. This Court held in Coates v. Locust Point Company, 102 Md. 291 , and in Walker v. Baldwin & Frick et al., 103 Md. 352 , that, inasmuch as .the license which was required to be obtained was a revenue measure, the failure to obtain a license did not make illegal a contract to pay commissions to an unlicensed broker, who ⁵⁴¹ was, however, subject to criminal prosecution. This entire sub-title was repealed and re-enacted by chapter 493 of Acts of 1918. There was no material change in the original sections, etxcept the inclusion of corporations within the scope of ¿lie law, but two new sections, designated sections 669A and 099B, were added.

Section 699A is the one under which the appellant argues that the contract to pay commissions in the case at bar was: rendered unenforceable and void, and it is as follows: “Section 69 9A. It shall be unlawful for any person, corporation or copartnership of persons to carry on the business of real estate broker in the City of Baltimore without first obtaining such license as is prescribed in section 695 of this article. Any person, corporation or copartnership who shall in Baltimore City on behalf of another for reward or remuneration of any kind undertake to purchase, sell, lease, mortgage, exchange or deal in real estate or any interest therein, shall he deemed to be carrying on the business of real estate broker within the contemplation of this article. And every contract, agreement or undertaking hereafter made by any person to pay such unlicensed person, corporation or copartnership a commission, or other remuneration of any kind for such undertaking shall be unenforceable and void.” (See section 696 for another definition.) Under the farm in which the question is presented, it is conceded as proved that the vendee agreed to pay the agent of the vendor his, commissions for the consummated sale of a farm in Baltimore 'County, and that the vendor and vendee both lived in Baltimore City, where the contracts to sell and to pay commissions were made, but that the agent, who is a non-resident of Baltimore City, was not there or elsewhere engaged in the business of a real estate broker, and that his agency in the procurement of the vendee was but a single isolated transaction, and so was not in the course of a regular business carried on, or intended to be carried on, by the agent.

The appellee was neither an attorney at law nor an ⁵⁴² officer or employee .acting on behalf of a licensed corporation, nor yet an employee or member of a licensed co-partnership for whose benefit he was acting, so he was not within the express exemptions of section 700 of chapter 493 of the Acts of 1918, hut the question remains whether or noit he was within the purview of the statute. 1. Although either may conceivably he evidential on an issue of where the business is actually conducted, yet neither the residence of the real estate broker nor the location of the subject matter of his agency is decisive, as the real estate broker may carry on the business in Baltimore City either without residing there or without having his brokerage transactions confined to those within the territorial limits of Baltimfore City.' The .terms of the statute do not limit its ap* plication to those only who reside in Baltimore City. Keither does it prescribe that the business contemplated is one, in whatsoever form, method or course it -may assume or he conducted, that must pertain or relate to real or leasehold property which shall he 'situated in Bialtimbre City. In both sections. 696 and 699-A are fonnd definitions of what shall he deemed “carrying on the business of real estate broker,” and neither these nor the other .provisions of 'the law afford any basis for reading into the statute the exception that a real estate brokerage business may be carried on in Baltimore City .without a license, if the transactions concern only real and leasehold property outside of -the limits of B'altimore City.

A busiuess may be carried on where its executive, managerial and clerical work is done, while the subject matter of its activities or the property with which its. affairs and dealings lare concerned may he located in another political unit. Kor instance, A could live in Howard County, could maintain his office