{ "id": 5321820, "name": "STAR REALTY COMPANY and Palant International Realty, Inc., Plaintiffs-Appellees, v. H. A. SELLERS and Laura H. Sellers, Defendants-Appellants", "name_abbreviation": "Star Realty Co. v. Sellers", "decision_date": "1963-08-05", "docket_number": "No. 7247", "first_page": "207", "last_page": "210", "citations": [ { "type": "official", "cite": "73 N.M. 207" }, { "type": "parallel", "cite": "387 P.2d 319" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "48 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560807 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/48/0340-01" ] }, { "cite": "66 N.M. 410", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846909 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/66/0410-01" ] }, { "cite": "64 N.M. 163", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344555 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/64/0163-01" ] }, { "cite": "34 N.M. 121", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556018 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/34/0121-01" ] }, { "cite": "72 N.M. 227", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2854460 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/72/0227-01" ] } ], "analysis": { "cardinality": 383, "char_count": 6881, "ocr_confidence": 0.697, "pagerank": { "raw": 2.434013587276684e-07, "percentile": 0.8023589406177735 }, "sha256": "b59a64925673c64879904ad2cb4186d06480e0defa959d5a2e206588d3fcd224", "simhash": "1:1bec9def8184bf79", "word_count": 1144 }, "last_updated": "2023-07-14T20:56:36.975569+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CARMODY and MOISE, JJ., concur.", "COMPTON, C. J., and CARMODY, CHAVEZ and MOISE, JJ., concur." ], "parties": [ "STAR REALTY COMPANY and Palant International Realty, Inc., Plaintiffs-Appellees, v. H. A. SELLERS and Laura H. Sellers, Defendants-Appellants." ], "opinions": [ { "text": "NOBLE, Justice.\nDefendants have appealed from a judgment against them for a real estate commission.\nPlaintiffs, Star Realty Company, a New Mexico Corporation, and Palant International Realty, Inc., an Arizona corporation, cooperated in securing a written contract for the sale of defendants\u2019 ranch. The transaction was not completed because of failure of a portion of defendants\u2019 title. Several points are relied upon for reversal but plaintiffs\u2019 failure to prove that they were licensed real estate brokers or salesmen as required by Ch. 226, Laws of 1959, is determinative of this appeal.\nSection 67-24-19, N.M.S.A.1953, makes it unlawful for any person, co-partnership, association or corporation to act as a real estate broker or salesman without a license; and. \u00a7 67-24-33, N.M.S.A.1953, prohibits any unlicensed person from maintaining any action in the courts of this state to recover a real estate commission. That provision reads:\n\u201cNo action for the collection of commission or compensation earned by any person as a real estate broker or salesman required to be licensed under the provisions of this act [67-24 \u2014 19 to 67-24 \u2014 35] shall be maintained in the courts of the state unless such person was a duly licensed broker or salesman at the time the alleged cause of action arose. In any event suit against a member of the public as distinguished from any person licensed under this act shall be maintained only in the name of the broker.\u201d\nThe complaint alleges and the answer denies that the plaintiff corporations were licensed real estate brokers. The court made no finding with respect to such licenses. The requirements of the statute were called to the court\u2019s attention by defendants\u2019 request for a finding that they were not licensed.\nRule 52(B) (2) (\u00a7 21-1-1 (52) (B) (2), N.M.S.A.1953) requires the finding of such ultimate facts as are necessary to determine the issues. \u201cUltimate fact,\u201d when used with reference to findings, means the essential and determinative facts on which the conclusion was reached. They are the controlling facts, without which the court cannot correctly apply the law in rendering its judgment. Apodaca v. Lueras, 34 N.M. 121, 278 P. 197. A judgment cannot be sustained on appeal unless the conclusion upon which it is based finds support in the findings of fact. Jontz v. Alderete, 64 N.M. 163, 326 P.2d 95; Isaac v. Seguritan, 66 N.M. 410, 349 P.2d 126; Consolidated Placers, Inc. v. Grant, 48 N.M. 340, 151 P.2d 48. It is clear that a judgment for recovery of a real estate commission without a finding that plaintiff held either a broker\u2019s or salesman\u2019s license, when the cause of action arose, is erroneous.\nThe trial court found, in the instant case:\n\u201c1. That Star Realty, Plaintiff, is a New Mexico corporation and Charles W. Williams is a licensed real estate broker in the State of New Mexico.\u201d\nThere is testimony that Charles W. Williams was president of Star Realty Company; and \u00a7 67-24-26, N.M.S.A.1953, permits corporations to hold a real estate broker\u2019s license in the corporate name if at least one officer or employee holds a broker\u2019s license. The pertinent portion of the statute provides:\n\u201c * * * Such license shall be issued in the name of the corporation, * * * naming the * * * officer or employee as qualifying broker for said corporation, * *\nEven though there is evidence that the corporation may have been entitled to a broker\u2019s license, there is no evidence that one was ever applied for or issued to it. Plaintiffs urge that we infer from the testimony of Mr. Williams that he intended to testify that the corporation was a licensed broker. In our view, the testimony urged upon us does not support an inference that the corporation was licensed. If there was evidence in the record from which the trial court might find existence of the fact necessary to support the judgment, we would remand the case to the trial court to make findings. In this case, however, our review of the evidence convinces us that a finding that the corporation held a broker\u2019s license would be without substantial support in the evidence. It is not enough that Mr. Williams held such a license. He is not the plaintiff. An action to recover a real estate commission may only be brought in the name of the licensed broker. Section 67-24-33, N.M. S.A.1953.\nThe failure of proof that plaintiff Star Realty Company held a real estate broker\u2019s license at the time of the accrual of this action requires a reversal. In view of the disposition we have made, it is unnecessary to determine other questions presented and argued.\nThe case will be reversed and remanded with instructions to vacate the judgment appealed from and to enter a new judgment dismissing the action with prejudice.\nIt is so ordered.\nCARMODY and MOISE, JJ., concur.", "type": "majority", "author": "NOBLE, Justice." }, { "text": "ON REHEARING\nNOBLE, Justice.\nWe are satisfied with the opinion \u25a0originally filed in this case, but language appearing in Southwest Motel Brokers, Inc. v. Alamo Hotels, Inc., 72 N.M. 227, 382 P.2d 707, is said to be controlling and to require a different result in the instant case. We take this opportunity to correct an inadvertent erroneous statement in that opinion.\nEntirely by inadvertence, it was said in Southwest Motel Brokers that \u201c[t]he burden was upon appellant and McKinley to establish by evidence in the record that appellees were not licensed real estate brokers in New Mexico.\u201d The Statute, Secs. 67-24-19 to 67-24-35, N.M.S.A.1953, prohibits an action based upon a claimed real estate action except by one licensed as provided by law.\nThe statute casts no burden upon a defendant to prove absence of a license but does place upon one claiming a real estate commission the burden of establishing that he was duly licensed when the alleged cause of action arose.\nThe inadvertent statement relative to the burden of proof in Southwest Motel Brokers was unnecessary to, and the result reached in that case was not in any way based upon where the burden of proof of a license rested. That question was never reached because the decision there turned upon a finding that the action was for recovery of a commission for the sale of corporate stock.\nSo that there may be no doubt, the statement above quoted from Southwest Motel Brokers, Inc. v. Alamo Hotels, Inc., supra, insofar as it purports to cast the burden upon a defendant to establish lack of a real estate license as a defense to an action for a real estate commission, is expressly overruled. Rehearing is denied.\nCOMPTON, C. J., and CARMODY, CHAVEZ and MOISE, JJ., concur.", "type": "rehearing", "author": "NOBLE, Justice." } ], "attorneys": [ "Smith, Smith & Tharp, Clovis, for appellants.", "Gino J. Matteucci, Peter V. Domenici, Albuquerque, for appellees." ], "corrections": "", "head_matter": "387 P.2d 319\nSTAR REALTY COMPANY and Palant International Realty, Inc., Plaintiffs-Appellees, v. H. A. SELLERS and Laura H. Sellers, Defendants-Appellants.\nNo. 7247.\nSupreme Court of New Mexico.\nAug. 5, 1963.\nRehearing Denied Dec. 2, 1963.\nSmith, Smith & Tharp, Clovis, for appellants.\nGino J. Matteucci, Peter V. Domenici, Albuquerque, for appellees." }, "file_name": "0207-01", "first_page_order": 239, "last_page_order": 242 }