I am unable to concur in the conclusions reached by my associates *Page 263 relative to the disposal of this case. The majority opinion holds that the only question which need be determined is that of the applicability of the Statute of Frauds and that the agreement involved in this case comes within subdivision 6 of section 7519, Revised Codes of 1935, which provides that an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission, is invalid unless the same or some note or memorandum thereof be in writing and subscribed by the party to be charged or his agent.
If it be conceded that the agreement involved in this action is an agreement authorizing an agent or broker to purchase or sell real estate the conclusion might be tenable that said agreement was within the Statute of Frauds above referred to. However unless the agreement was one authorizing an agent or broker to purchase or sell real estate it obviously does not come within the statute referred to. As I read the facts in this case, plaintiff was not authorized or empowered to either purchase or sell real estate. He was employed only to find someone interested in the purchase of the ranch and to "produce and introduce" such person to defendant with whom defendant might be able to negotiate a sale. That was all that plaintiff was employed to do and that was all he did. When defendant completed the sale of his ranch to the purchaser produced and introduced to him by the plaintiff, plaintiff's agreement with defendant was fully executed by plaintiff and that agreement involved neither the purchase nor sale of real estate nor the doing of any act relating to the transfer of title to real estate. Hence the agreement was not within the Statute of Frauds in so far as the sale of real estate is concerned.
In 8 Am. Jur., page 1001, section 22, the law is stated as follows: "The provisions of the general statute of frauds, requiring contracts for the sale or purchase of real or personal property to be in writing, have no application to a mere contract of employment by which one person is to act as the broker of another in negotiating a sale or purchase of the property of the *Page 264 latter." (Citing numerous authorities in the accompanying case Note No. 10.)
In 37 C.J.S., Frauds, Statute of, sec. 69, pages 577, 578, discussing the Statute of Frauds, the author states the law as follows: "The statute of frauds ordinarily embraces all interests in realty, whether corporeal or incorporeal; but it does not extend to agreements which, although in some manner relating to realty, do not contemplate the transfer of title, ownership, or possession."
This court has also recognized the principle that in order to be within the Statute of Frauds an agreement for the sale of real estate must be an agreement for the sale of an interest in land. Thus in Kramer v. Schmidt, 62 Mont. 568, 206 P. 620, it is held that under an option to buy land the person to whom such option is granted acquires thereby no interest in the property itself and that the giving of such option did not amount to the employment of the plaintiff as a broker or agent to buy land or an interest in land and was not therefore within the provisions of section 7519.
Effect of Performance. Not only was the agreement between plaintiff and defendant not one for the purchase or sale of real estate and hence not within the statute, but if it be assumed that it ever was within the statute it was taken out of the statute by full performance by one of the parties thereto. The amended complaint alleges that plaintiff fully performed all the terms and conditions of his oral contract with defendant and that the agreement between plaintiff and defendant was completely executed except for payment of the agreed compensation to the plaintiff. Upon such performance the contract was no longer executory and if it was ever subject to the Statute of Frauds it was taken out of the statute by plaintiff's complete performance. In Besse v. McHenry, 89 Mont. 520, 527, 300 P. 199, 201, this court said: "While an oral contract which as an executory agreement is invalid by reason of the statute of frauds, when it has been completely executed in accordance with its terms, it is thus taken out from under the operation of the *Page 265 statute. Stillinger v. Kelly, 66 Mont. 441, 214 P. 66, 68; Mosher v. Sanford-Evans Co., 68 Mont. 64, 216 P. 811; McIntyre v. Dawes, 71 Mont. 367, 229 P. 846; Hogan v. Thrasher, 72 Mont. 318,233 P. 607; Gravelin v. Porier, 77 Mont. 260,250 P. 823. A fully executed parol contract cannot be affected by the statute of frauds, and cannot be assailed by the parties, or by third persons, on the ground that it is not in writing. The rule is the same where full performance is by one of the parties only. 12 Cal. Jur., p. 927."
To the same effect is Cobb v. Warren, 64 Mont. 10,208 P. 928, holding that under subdivision 6 of section 7519, the original agreement or subsequent modification of a contract employing a broker to sell real estate applies only so long as the contract is executory but does not apply where the contract has been executed.
The majority opinion cites Marks v. Walter G. McCarty Corp., Cal.App., 194 P.2d 816. That case does not pass upon the chief ground on which this dissent is based. It does not decide whether or not the agreement between the parties in that case was an agreement for the purchase or sale of real estate. Neither does it decide what the rule of law would be if it had been determined that the contract was not (as in our case) one for the sale of real estate.
In view of my conclusion that plaintiff was entitled to recovery on his express contract as not within the Statute of Frauds, it is unnecessary to discuss the question of recovery on a quantum meruit. I think, however, that the court should have passed upon the question whether plaintiff was a real estate broker within the meaning of section 4058, Revised Codes of 1935, and should have announced the law that the plaintiff was not a real estate broker within the meaning of said section, in view of the fact that he made but one single real estate transaction within the year. See Harbolt v. Hensen, 78 Mont. 228,253 P. 257, in which this court held that the provisions of section 4075 that one acting in the capacity of a real estate broker cannot maintain an action for compensation unless he alleges *Page 266 and proves that at the time the cause of action arose he was duly licensed to act as a broker, have no application to one who acts in that capacity in connection with a single transaction.
In my opinion the order of the trial court sustaining the demurrer to the amended complaint and the final judgment dismissing said complaint and the order taxing costs should be reversed and overruled and the amended complaint should be reinstated and the defendant permitted to plead thereto as he may be advised.