Albert E. FOSTER and Jane Doe Foster, his wife, Appellants,
HOUSE BEAUTIFUL HOMES, Inc., a corporation, appellee.
Wesley E. Polley and John G. Pidgeon, Bisbee, for appellants.
Gentry & Gentry, and William E. Kimble, Bisbee, for appellee.
LA PRADE, Chief Justice.
Appeal from a summary judgment awarding plaintiff $2,500 plus costs for money due under a real estate brokerage contract. Defendant appeals, stating that the trial [78 Ariz. 407] court erroneously granted plaintiff's motion for summary judgment. He contends that the complaint failed to state a claim and that the pleadings and deposition disclosed genuine issues as to material facts.
Plaintiff, by way of a second assignment, became the owner of the contract sued on and the sums due thereunder. The original assignor, one Allford, a realtor, entered into a brokerage agreement with defendant by the terms of which Allford was to effect an exchange of defendant's California property for property located in Warren, Arizona. The contract acknowledged that Allford had secured the exchange and that there was due him by way of a commission fee the sum of $5,000, to be paid in two equal payments of $2,500 each. On nonpayment of the first installment this suit was instituted. The contract was by reference made a part of the complaint so that it affirmatively appeared that the consideration for the contract was personal services rendered as a real estate broker. The complaint did not allege that Allford, at the time his services were performed, was a duly licensed broker.
Defendant by his answer admitted the execution of the contract and nonpayment, and denied any liability thereunder. Defendant plead fraud on the part of Allford in inducing the contract with certain specifications not necessary to relate at this time. The answer contained the additional allegation that the complaint failed to state a claim upon which relief could be granted.
At the time the motion for summary judgment was considered there was before the court, in addition to the complaint and answer, the deposition of the defendant. It related chiefly to the services rendered and the asserted claims of fraud. It contained no reference as to whether Allford was a duly licensed broker. After considering the complaint, the answer and the deposition, the trial court determined that there were no genuine issues of fact on the fraud charges and accordingly rendered judgment for plaintiff.
By assignment of error defendant has challenged the correctness of the court's determination that there were no genuine issues of fact and that plaintiff was entitled to judgment as a matter of law. He points out that the complaint fails to allege that the broker was duly licensed. The applicable statute, section 67-1730, A.C.A.1939, reads as follows:
'Actions for the collection of compensation.-An action for the collection of compensation earned may be maintained in the courts of the state, by any broker or salesman. To initiate any such suit the complaint must allege that the complainant was a duly licensed broker or salesman at the time the alleged cause of action arose, and precedent
to hearing the cause the court shall require the plaintiff to prove the alleged qualifications of such licensee.' Laws 1937, Ch. 53, sec. 30, p. 177.
[78 Ariz. 408] His proposition of law in support of the assignment that the complaint failed to state a claim is to the effect that in an action in the courts of this state for the collection of compensation by a real estate broker or salesman the complaint must allege that the complainant was a duly licensed broker or salesman at the time the alleged cause of action arose.
Appellee's position is that plaintiff waived the necessity of pleading license by his failure to affirmatively set forth in his answer any affirmative defense that he had by way of avoidance, and that the defense is unavailable when asserted for the first time on appeal. Appellee relies on Rule 8(c), Rules of Civ.Proc., being section 21-406, A.C.A.1939. This rule reads:
'Affirmative defenses.-In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.' (Emphasis supplied.)
In a determination of these questions, attention must be given to rule 12(b), Rules of Civ.Proc., section ...