Democa v. Barasch

PRESTON, J.

Plaintiff, seeking to recover damages for the breach of Harry D. Barasch, a licensed real estate broker, brought this action against him and against defendant corporation as surety upon his $2,000 bond under the Real Estate Brokers’ Act of 1919, as amended (Stats. 1919, p. 1252, Act 61; Stats. 1925, chap. 341, p. 600). The cause

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was tried before the court without a jury, upon stipulated facts, and the court thereafter made its findings; and entered judgment in favor of plaintiff and against defendant corporation, from which judgment said defendant now appeals.

Appellant’s main contention is that of insufficiency of the evidence to justify the findings and judgment. In this behalf, it is urged that the sale made by defendant Barasch was not a real estate transaction, requiring the services of a real estate broker, as defined by the act, and that said defendant was not acting in that capacity, but that said sale was merely one of personal property, consisting of a poolroom, stock and equipment, carrying with it as incidental to the interest in the personalty sold, the sale and assignment of plaintiff’s leasehold interest; that the judgment against appellant as • surety should not include the purchase price of the personalty, but should be limited to the value, if any, of the lease alone; that the evidence failed to show that said defendant was employed to negotiate a sale or exchange of the lease or to show what amount, if any, was paid for the transfer thereof; that said defendant was acting as the attorney-in-fact . of plaintiff and therefore the provisions of said act do not apply. Lastly, appellant complains of insufficiency in the allegations of the complaint with respect to the employment of said defendant and of inconsistencies in the findings.

These various contentions require us to here set forth briefly the pertinent provisions of the said statute, of the pleadings, stipulation of facts and of the findings and judgment herein.

Section 2 of said Real Estate Brokers’ Act (Stats. 1925, p. 600) defines a real estate broker in part as “ ... a person . . . who, for compensation, negotiates loans on real estate, leases, or offers to lease, or negotiates the sale, purchase, or exchange of leases, rents, or places for rent, or collects rent from real estate . . . for others as a whole or partial vocation . . . ”. Said section further reads: “Nor shall the provisions of this act apply to persons holding a duly executed power of attorney from the owner, nor shall this act be construed to include in any way the services rendered by an attorney at law in performing his duties as such attorney at law . . . ”