Cundiff v. Wills
Cundiff v. Wills
Opinion of the Court
Under the Real Estate and Business Brokers’ License Act for the District of Columbia,
Four suits, subsequently consolidated for trial, were filed against the real estate broker, Edward L. Wills, and two sureties, American .Casualty Company and the Massachusetts Bonding and Insurance Company. Trial resulted in judgment 'for the several plaintiffs against Wills, who, although subpoenaed, failed to appear. The court, however, found in favor of the surety companies. Lynwood Cundiff and Cassie Cundiff, plaintiffs in one of the cases, and Robert E. Martin, plaintiff in another, are parties to. the appeals.
Lynwood Cundiff, through Wills as broker 'for the seller, entered into a contract for the purchase of a house. Concurrently with the signing of this contract the 'broker signed a written agreement that he -would obtain the financing for the premises on specified terms and that if he could not secure such financing the $500 deposit which -Cundiff placed with him at the time of signing the purchase contract would be refunded. All of these negotiations, including the deposit, occurred prior to July 1, 1948. On the settlement date, July 6, 1948, the broker had.not obtained the financing agreed upon, and the seller declared a forfeiture of the $500 deposit. .Cundiff thereupon made demand on the 'broker for the return oí such deposit. Failure to return the deposit led to one of the present suits.
The other plaintiff, Robert E. Martin, entered into a real estate purchase contract with the broker (as the agent of an undisclosed principal) June 15, 1948. This contract was likewise secured by a deposit of $500 with the broker. An additional deposit of $500 was made on this contract June 30, 1948, resulting in a total deposit of $1,000. July 12, 1948, the broker informed Martin that the seller would be unable to consummate the sale, whereupon Martin demanded from the broker the return of the $1,000 deposit. On July 25, 1948, the broker repaid $250 and an additional $300 August 10, 1948. The remainder, $450, has not been returned to date.
Wills was first licensed as a real estate broker in 1943 and his license was renewed 'for each of the following years, the last ending July 1, 1948. This license was supported by a bond of the Massachusetts Bonding and Insurance Company, pursuant to statutory requirements.
The evidence showed that prior to July 1, 1948, the Real Estate Commission had received several complaints against Wills arising out of his transactions as a real estate broker and as a result of these complaints the Commission directed that in the event he filed a request for the renewal of his license such request be called to its attention. July 1, 1948, Wills did file his application for renewal for the ensuing year. July 13, 1948, he was served with an order for a public hearing on such application. This hearing was scheduled for July 28, 1948, but on that date Wills appeared before the Commission and withdrew his application. The scheduled hearing was cancelled and Wills was never issued a license as a real estate broker for the year ending July 1, 1949.
The real estate bonds involved here provide for recovery against the bonding company of any damages sustained by reason of any conduct of the broker in violation of any provision of the act or enumerated as a ground for suspension of the license.
The first issue presented for our consideration is whether the broker’s admitted defaults occurred prior to or after July 1, 1948. While the circumstances might have made possible charges of broader violations occurring prior to July 1, we emphasize that the only charges made here were for the nonreturn of money and that the demands for such return were not made until after July 1. No evidence was offered regarding the financial affairs of the broker or that the deposits were originally obtained by him fraudulently. It has been held that no obligation arises on the part of a broker to repay until demand is made.
The second and final issue is whether either or both of the bonding companies were liable for the defaults which occurred after July 1, 1948. This issue may be narrowed immediately to the claim against the American Casualty Company, which went on the bond of Wills June 9, 1948, in support of the then outstanding license of Wills or any renewal or reissuance thereof if the same were issued to the principal. The Massachusetts Bonding and Insurance Company cancelled its bond effective June 9, 1948, and the statute specifically provides that upon giving notice of cancellation the surety shall be discharged from all liability for any act or omission of the principal occurring after the cancellation becomes effective. Since under the pleadings and proof in these cases there was no default until after July 1, it seems clear that the Massachusetts Bonding and Insurance Company was no longer liable. As to this defendant, therefore, we unhesitatingly affirm the judgment of the trial court.
The argument with respect to the liability of the American Casualty Company after July 1, 1948, is as follows: The Licensing Act was enacted by Congress to protect the public against unscrupulous and defaulting brokers, and hence the Act should be construed liberally to effectuate that purpose. Since the Act permits brokers to file renewal applications up to and including July 1, and since the Real Estate Commission as an administrative practice per
Such argument has a strong appeal. It appears, however, to be contrary to the plain language of the statute and of the bond itself. The statute provides that “every license shall expire on the 1st day of July of each year * * *.”
While the question is one of first impression in this jurisdiction, the majority of cases elsewhere in which the point has been considered have held that a bond given to secure the proper performance of his obligations by one to whom a license is to be issued expires with the license.
Here there was no provision either in the statute or in the bond itself giving the bond a longer life than the license except in cases where the license is renewed or reissued. There appears to be a clear gap in the statute or in the regulations issued pursuant thereto for a default occurring, as these did, after the expiration of one license and during the pendency of an application for a new license. It seems clear that the public ought to be protected when a new application is rejected or withdrawn just as there is now protection when a new application is granted. Possibly the bond form could be rewritten to make the bonding company liable on defaults occurring for at least a reasonable time after the expiration of a license. ' Possibly the Real Estate Commission could provide that applications for renewal of licenses should be made prior to expiration of old ones so that the existing time interval would not exist. These, however, clearly are matters for legislative or administrative action, not for judicial interpretation. We can not rewrite the statute or the regulations but must apply them as they' are. We find nothing in general law or in the statute or the bond to support a holding that the bonding company was liable during the period when the defaults in the present cases occurred.
The judgments of the court below are
Affirmed.
. Code 194b, § 45—1401 et seq.
. Code 1940, § 45 — 1405.
. “The surety may terminate its liability under such bend by giving thirty days’ written notice thereof, served either personally or by registered mail, to the principal and to the Commission; and upon giving such notice the surety shall be discharged from all liability under such bond for any act or omission of the principal occurring after the expiration of thirty days from the date of service of such notice.” Code 1940, § 45 — 1405.
. Code 1940, § 45 — 1405.
. Code 1940, § 45 — 1408(g).
. Mack v. Massachusetts Bonding & Ins. Co., 136 Cal.App. 63, 27 P.2d 934; Coover v. Cox, 95 Cal.App. 1, 272 P. 343; see also Aetna Casualty & Surety Co. v. State, Tex.Civ.App., 86 S.W.2d 826; Glens Falls Indemnity Co. v. Kirkpatrick, 46 Ohio App. 23, 187 N.E. 643.
. Code 1940, § 46 — 1407.
. Anno. 74 A.L.R.. 1309; United States v. Smith, 8 Wall. 587, 19 L.Ed. 506; Spiegler v. Chicago, 216 Ill. 114, 74 N.E. 718; Rumford v. Boston Grocery Co., 111 Me. 116, 88 A. 394; Commonwealth v. Foch Cereal Co., 302 Pa. 373, 153 A. 695; Adams v. State, 105 Tex. 374, 150 S.W. 591; see also Mack v. Massachusetts Bonding & Ins. Co., supra; American Surety Co. of New York v. School Dist. of Haverford Tp., 3 Cir., 101 F.2d 300, certiorari denied 307 U.S. 626, 59 S.Ct. 828, 83 L.Ed. 1510; 2 McQuillin, Municipal Corporation, (2d Ed.) § 570, p. 405.
Reference
- Full Case Name
- CUNDIFF v. WILLS MARTIN v. WILLS
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- Published