Harding v. Hagar , 63 Me. 515 ( 1874 )

Appleton, O. J.

The plaintiff is a commercial broker within the act of congress of June 30, 1864. By § 71 of that act, all persons, firms, companies and corporations are prohibited from carrying on certain trades, business or professions mentioned in the act, including that of commercial broker, under a penalty of fine and imprisonment, as provided by § 73.

It was held in Harding v. Hagar, 60 Maine, 340, that a commercial broker cannot recover compensation for services rendered without proof that he has the license required by the act. It was early held, that an action founded upon a violation of the laws of the United States could not be maintained. Maybin v. Coulon, 4 Dall., 298. “It would make prohibitory acts nugatory and of no effect,” observes Deady, J., — in The Pioneer, Deady, 72, — “if parties could act and contract in violation of them.” It was held in Holt v. Green, 74 Penn, 201, that a commercial broker could not recover his commissions unless he had taken a license as required by the act of congress of June 30, 1864. “The moment he opened his case,” observes Mercur, J., in delivering the opinion of the court, “he showed that he was engaged in a business directly contrary to a clear and express act of congress, and that for so doing he was liable to fine and imprisonment. The intent with which he did it cannot be inquired into in this action. His right to commissions as shown rested upon his illegal acts. His right to recover in law must rest upon his legal right to perform his services. The facts show he had no such right. Without the aid of his illegal transactions he could not and did not show any services performed. His case, as he exhibits it, is based upon a clear violation of the statute. He grounds his action upon that violation. Thus resting his case, he cannot successfully invoke the aid of the court.” So in. England, a person who in London acted as a sworn broker, but who was not qualified to act as such according to the provisions of 6 Anne, 16, could not recover his commissions, though he might his advances. Cope v. Rowlands, 2 M. & W., 149.

The license given under §§ 71 and 72 is to persons, associations of persons, partnerships or corporations. A license to individuals will not protect partnership transactions, though the individuals licensed may be members of the partnership. Neither will a license to a firm protect the several members of the firm in their individual business. The plaintiff has shown no license. The one given to a firm of which he was formerly a member protects the transactions of the firm, but not those of its different members. Nor does the plaintiff bring himself within the provisions of § 75. He must therefore be regarded as acting without a license, and is not entitled to recover. Nonsuit confirmed.

Cutting, Dickerson, Barrows, Daneorth and Yirgin, JJ., concurred.