Raab & Co. v. Independence Corp.

MALLARD, Chief Judge. Henry S. Raab testified for the plaintiff that he is president of the plaintiff; that his corporation had acted as rental agent for the defendant corporation performing services for defendant in this capacity prior to the most recent rental agreements; and that plaintiff was not afforded an opportunity to participate in the negotiations of the new leases. He testified that his corporation had not obtained a certificate of authority to transact business in North Carolina. Raab also testified that he has procured tenants in other cities in North Carolina; that “(m)y corporation is not licensed as a real estate agent in the State of North Carolina”; that “(m)y corporation is a Virginia corporation” ; and that “ (o) ur corporation has not obtained a Certificate of Authority to transact business in North Carolina.” Defendant’s exhibit one is a letter dated 22 February 1965 to the president of the defendant corporation in Charlotte which plaintiff’s witness Raab admitted writing. This letter reads as follows: [676] “RAAB AND CO., INC. REAL ESTATE Main St. at 5th Richmond, Ya. 23219 February 22, 1965 Mr. Porter B. Byrum President Independence Corporation Independence Building Charlotte, North Carolina Dear Mr. Byrum: This will acknowledge receipt of your letter of February 19, 1965. We have been in business 50 years, and the enclosed copy of letters, particularly the one from the First and Merchants National Bank, should convince you of our honesty and integrity. We collect thousand (sic) of dollars rent for estates in your city that are handled by the American Commercial Bank, who could tell you anything you want to know concerning us. Trusting this will satisfy you, Cordially yours, /s/ Henry S. Raab FOR THE COMPANY” G.S. 93A-2(a) defines a real estate broker as follows: “A real estate broker within the meaning of this chapter is any person, partnership, association, or corporation, who for a compensation or valuable consideration or promise thereof lists or offers to list, sells or offers to sell, buys or offers to buy, auctions or offers to auction (specifically not including a mere crier of sales), or negotiates the purchase or sale or exchange of real estate, or who leases or offers to lease, or who sells or offers to sell leases of whatever character, or rents or offers to rent any real estate or the improvement thereon, for others.” G.S. 93A-8 provides: “Any person violating the provisions of this chapter shall [677] upon conviction thereof be deemed guilty of a misdemeanor and shall be punished by a fine or imprisonment, or by both fine and imprisonment, in the discretion of the court.” In the case of McArver v. Gerukos, 265 N.C. 413, 144 S.E. 2d 277 (1965), the Supreme Court said: “If the statute, so construed, makes the doing of an act a criminal offense, one who has contracted to do the forbidden act may not, after performing his contract, sue in the courts to recover the agreed consideration for such performance. Cauble v. Trexler, 227 N.C. 307, 42 S.E. 2d 77; Courtney v. Parker, 173 N.C. 479, 92 S.E. 324; Cansler v. Penland, 125 N.C. 578, 34 S.E. 683; Restatement of Contract, § 580; Anno., Validity of Contract in Violation of Statute, 55 A.L.R. 2d 481, 483.” In Builders Supply v. Midyette, 274 N.C. 264, 162 S.E. 2d 507 (1968), the Court held: “Upon Bryan’s stipulation that at all times pertinent to this litigation it was not licensed to construct buildings ‘where the cost is $20,000.00 or more,’ Judge McKinnon correctly dismissed its action against owners for the balance due under the terms of the contract upon which it had sued. McArver v. Gerukos, 265 N.C. 413, 144 S.E. 2d 277; Tillman v. Talbert, 244 N.C. 270, 93 S.E. 2d 101; Cowrtney v. Parker, 173 N.C. 479, 92 S.E. 324. * * * ” Plaintiff’s only assignment of error is that “(t)he Court erred in granting Defendant’s motion to dismiss for failure to prove a case and in entering judgment dismissing the case with prejudice.” When the above quoted statutes and the principles of law enunciated in McArver v. Gerukos, supra, and Builders Supply v. Midyette, supra, are applied to the facts of this case, we are of the opinion and so hold that the court correctly allowed defendant’s motion to dismiss the claim of the plaintiff. Affirmed. Judges Parker and Hedrick concur.