Opinion
Rehearing Denied April 16, 1974.
Page 148
John H. Tippit and Thomas W. Whittington, P.C., Thomas W. Whittington, Denver, for plaintiffs-appellants.
Madden & Strate, P.C., William J. Madden, Denver, for defendants-appellees.
COYTE, Judge.
Plaintiffs appeal the trial court's dismissal of their complaint to recover compensation (a finder's fee) for services rendered in the purchase by defendants of a ranch offered for sale by a third party. We affirm.
The sole question at issue is whether plaintiffs, who do not have a real estate broker's license, can recover for services rendered in finding buyers for a ranch where buyers agreed to pay for those services.
1969 Perm.Supp., C.R.S.1963, 117--1--1, provides in part:
'It shall be unlawful for any person, firm, partnership, association, or corporation to engage in the business or capacity of real estate broker or real estate salesman in this state without first having obtained a license from the real estate commission.'
1965 Perm.Supp., C.R.S.1963, 117--1--2, defines, in pertinent part, 'real estate broker' as follows:
'(1) (a) A 'real estate broker', as used in this article, means any person, firm, partnership, association, or corporation who, in consideration of compensation by fee, commission, salary, or anything of value, or with the intention of receiving or collecting such compensation, engages in or offers or attempts to engage in, either directly or indirectly, by a continuing course of conduct or by any single act or transaction, any of the following acts:
(b) Selling . . . real estate . . .
(c) Offering to sell . . . real estate . . .
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(e) Negotiating the purchase, sale, or exchange of real estate . . .
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(i) Performing any of the foregoing acts as an employee of, or in behalf of, the owner of real estate, or interest therein, or improvements affixed thereon, at a salary or for a fee, commission, or other consideration; . . ..'
It is admitted that neither of plaintiffs has a real estate broker's license. They were told of the owners' desire to sell the property, received information on the property, showed the property to the buyers, and then introduced the buyers to sellers. Sellers and buyers then negotiated the agreement which culminated in buyers purchasing the property.
Plaintiffs discussed a finder's fee with sellers, whose representative stated that it would not pay a finder's fee, but indicated to plaintiffs that it would 'protect' plaintiffs in the closing in the event of a sale. Looking at the evidence most favorably to plaintiffs, defendants agreed to pay for plaintiffs' services. After the sale was closed, plaintiffs made demand upon defendants for the agreed fee and, when defendants denied liability, filed this suit. In Benham v. Heyde, 122 Colo. 233, 221 P.2d 1078, the court quoting from Roman v. Lobe, 243 N.Y. 51, 152 N.E. 461, stated:
"Where a statute requires a broker to obtain a license before sales of the kind in question can be negotiated by him, there is no doubt that if such a sale is made by one acting as a broker without the required license, He can recover no compensation for his services." (emphasis supplied)
Plaintiffs contend that since they did not participate in the negotiation and preparation of the sales agreement, their activities would not be included within the statutory definition of the activities of a broker. We disagree.
An examination of the legislative history of C.R.S.1963, 117--1--2, reveals a legislative intent to enlarge and extend the definition of the term 'broker.' The 1965 amendment now encompasses all activities by a person who is an efficient procuring cause of the sale of Colorado real estate. The definition of a 'real estate broker' was expanded to include one who receives a 'fee, commission, salary or anything of value,' or 'any person . . . with the intention of receiving . . . compensation,' and 'who . . . Engages in . . . or Attempts to engage in, either Directly or Indirectly,' even 'a single act,' of a 'sale,' or of 'negotiating' for a sale of real estate (emphasis added).
Furthermore, the case law defines a broker as one who finds 'the person to whom to sell, or from whom to buy, as the case may be.' See Stank v. Michaelson, Colo.App., 506 P.2d 757. This is the service performed by plaintiffs. Thus, we conclude that plaintiffs as a matter of law are not entitled to recover any fee. Benham v. Heyde, Supra. They did not have a real estate broker's license and proper construction of the pertinent statute in accordance with applicable case law demonstrates that plaintiffs acted as brokers in the sale of defendants' ranch. To decide otherwise would impose an unfounded limitation on the licensing statute, since every unlicensed broker would be able to carry on this business just as he did before the statute came into existence by merely calling himself a finder or originator or introducer instead of a broker.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.