broker who had arranged for an exchange of properties could collect damages including the fee due to the broker from the other party for the breach of the defendant’s promise to convey, the Statute of Frauds being no defense to an action by a broker for compensation as long as the purchaser takes no advantage of the statute
How later courts described this case
- broker who had arranged for an exchange of properties could collect damages including the fee due to the broker from the other party for the breach of the defendant’s promise to convey, the Statute of Frauds being no defense to an action by a broker for compensation as long as the purchaser takes no advantage of the statute
Written by the judges who cited it.
The opinion
SOMERVILLE, J.
(dissenting). In Sunflower Lbr. Co. v. Turner Sup. Co., 158 Ala. 191 , 48 South. 510 , 132 Am. St. Rep. 20 , holding that contracts made in the course of conducting a business, without the license required by law, were valid and enforceable, the court was dealing with a statute (Code, § 2361) which provided merely that “licenses are required of all persons engaged in or carrying on any business,” etc., and the correctness of the conclusion is unquestionable.
The language of our Revenue Act of 1915, which is repeated in the act of 1919 (Gen. Acts 1919, p. 395), expressly prohibits the carrying on of the specified businesses — including that of real estate brokers — without' first procuring a license therefor; and I cannot escape the conviction that such a prohibition carries with it a legislative outlawry of executory contracts which are sought to he enforced by any offender of the law. The' change in the language of the present law is significant, and ought to he given appropriate restrictive effect in accordance with its obvious purpose.
According to the weight of authority, the burden of proof on such an issue in civil cases,’ where the holding of a license is only collaterally involved, is upon the defendant. Abhau v. Grassie, 262 Ill. 636 , 104 N. E. 1020 , Ann. Cas. 1915B, 414, and note, 416. But in this state it has been authoritatively settled that the burden of proof is upon the party who is required to have the license, the rule being founded upon considerations of policy and convenience. Edisto Phosphate Co. v. Standford, 112 Ala. 493 , 20 South. 613 ; Brown v. Raisin Fertilizer Co., 124 Ala. 221 , 26 South. 891 . And the same rule is established in prosecutions for viola
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tions of the license statutes. Porter v. State, 58 Ala. 66 . See, also, Mays v. Williams, 27 Ala. 267 .
The plaintiffs failed' to discharge this burden of proof, and there is no evidence in the record which tends to show, directly or inferentially, that they were licensed brokers.
It would result, in accordance with the authorities, that plaintiffs were not entitled to recover on the contract sued on. Brown v. Raisin Fertilizer Co., 124 Ala. 221 , 26 South. 891 ; Talladega F. & M. Co. v. Farmers’ Union Warehouse Co., 2 Ala. App. 307 , 56 South. 595 .
BROWN, J., concurs in the foregoing.