I am not in accord with the majority opinion. I do not think that the cases of Broderick, Inc. v. Riley and the companion case, Curtis v. Riley, cited in the majority opinion, are controlling. Those cases presented very close questions of fact. The conclusion was *Page 809 reached by the majority that the real estate brokers were not in employment as defined by statute, but were joint adventurers with the alleged employer, and that such claimed employer did not pay them any wages; also, that the money the brokers received as a result of their efforts came from the owners of the property that was sold, and, while it was originally placed in a trust fund, it eventually was divided between the realtors and brokers; that the money never became the property of the realtors and no money belonging to the realtors was used to pay the brokers.
This case has many similar features to the Broderick andCurtis cases in so far as the method of handling the sales of real estate is concerned, but there is one vital difference which I think distinguishes it from those cases and should be controlling here, and that is the remuneration which the real estate salesmen received for their efforts in selling real estate was money which belonged to the appellant. This money was paid to appellant by the owners of the property sold. It was held in abeyance pending the closing of a sale. When such sale was complete, the salesmen were then compensated by appellant. The appellant expressed this thought in his testimony as follows: "Q. And at the end of each month, an account is made up? Is that the way you do or do you pay them right away? A. Pay them right away as soon as the deal is consummated."
It further appears from the record that, in the arrangement between the appellant and the salesmen, he had the right to discharge any of them at any time and they were not permitted to sell for other real estate firms.
I think the evidence supports the finding of the department that these salesmen performed services for the appellant for wages under a contract of hire and therefore were in employment as defined by statute. When it is determined that one is in such employment, then, if the employer desires to exclude himself from the unemployment compensation act, he must show that the three exceptions enumerated in Rem. Supp. 1943, § 9998-119g (5) [P.P.C. § 928-1, § 19 (g) *Page 810 (5)], apply to those who are asserted to be in his employment.
The department found that the salesmen were not brought within any of the three exceptions, and in my opinion the record supports this finding.
We decided in McDermott v. State, 196 Wn. 261,82 P.2d 568; Mulhausen v. Bates, 9 Wn.2d 264, 114 P.2d 995; Inre Foy, 10 Wn.2d 317, 116 P.2d 545; Sound Cities Gas Oil Co. v. Ryan, 13 Wn.2d 457, 125 P.2d 246; State v.Goessman, 13 Wn.2d 598, 126 P.2d 201; In re Hillman Inv.Co., 15 Wn.2d 452, 131 P.2d 160; and UnemploymentCompensation Department v. Hunt, 17 Wn.2d 228,135 P.2d 89; that common-law concepts of the relationship of employer and employee and principal and agent do not apply in determining the question of employment. The only exception is the case ofWashington Recorder Pub. Co. v. Ernst, 199 Wn. 176,91 P.2d 718, 124 A.L.R. 667. 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, supra, it is not in its result out of harmony with our other cases. We should not extend the application of the Broderick and Curtis cases, supra, beyond the facts of those cases, but limit them as authority to situations where it clearly appears that there was a joint adventure relationship or something of that character and that no compensation was paid by the alleged employer for services rendered.
The judgment should be affirmed. *Page 811