The contract between the appellant and each broker provided that such broker was an independent contractor and not a servant, employee, joint adventurer, or partner of appellant. In its brief and argument before this court, the appellant contended that the true relationship between the parties, in so far as it was material, was that of a joint adventure, and as I read the majority opinion that is the conclusion reached.
The contract and the testimony given at the hearing presents a situation from which it may be said that certain elements of each relationship of independent contractors and *Page 800 joint adventurers existed; but as I read the record it seems clear to me that each broker performed services for appellant in selling real estate, and that he received remuneration therefor in the form of money. The real estate to be sold was listed with appellant. There was no contractual relationship between the brokers and the owner of the real estate. The commission the owner agreed to pay was payable to appellant. If a purchaser had been found who was ready, able, and willing to buy upon the terms specified and the owner had refused to sell, the appellant was the only one who could have brought an action for the commission earned. The broker would be neither a necessary nor a proper party to such action. The money realized upon any judgment entered would have been the property of appellant. Whatever money came from making the sale as a commission belonged to appellant, and the broker had no interest therein other than a contract with appellant that when a sale was finally consummated one half of the commission would be paid to him for his services in making the sale.
The contract between appellant and the individual brokers provided that it and the association created thereby might be terminated by either party at any time upon notice given to the other. This sounds more like discharging or quitting than a dissolution of a partnership or a joint adventure. The secretary of appellant testified it would not be satisfactory to appellant if a broker associated himself with another real estate firm.
When the contract is taken as a whole, and the course of dealing between the appellant and each broker is analysed, it seems plain that the part a broker really played was to take listings of property which had been given to the appellant and turned over to the broker by it, and proceed to negotiate sales; and if a sale was consummated the broker would receive one half of the commission for making the sale. This would constitute services for the appellant for a remuneration paid by him and would constitute employment under the unemployment compensation act. This would place the appellant under the terms of the act unless *Page 801 it could establish that the broker was within the three exceptions prescribed by Rem. Supp. 1943, § 9998-119g (5) [P.P.C. § 928-1, 19 (g) (5)].
The commissioner of unemployment compensation and placement found and determined that none of the exceptions applied and concluded that the appellant was an employer. The trial court upon appeal sustained the action of the commissioner.
We have decided many times as indicated by the cases cited in the majority opinion that the relationship between the parties involved must be determined by the statute and not by rules of the common law relating to the relationship of master and servant or principal and agent. The only exception is to be found in the case of Washington Recorder Pub. Co. v. Ernst, 199 Wash. 176,91 P.2d 718. If it is considered that the Recorder case is based upon the theory that the newsboys were independent contractors and therefore not within the act, then it is not in accord with our other cases and to that extent should be overruled. But if it is considered that it is based upon the theory that the relationship between the publishing company and the newsboys was that of vendor and vendees, as suggested inMulhausen v. Bates, 9 Wash. 2d 264, 114 P.2d 995, it is not in its result out of harmony with our other cases.
I think the record supports the findings of fact made by the commissioner and the conclusion thereon reached by both the commissioner and the court, and that the judgment should be affirmed. *Page 802