This case is before the court en banc upon exceptions to the adjudication and verdict for plaintiffs, arrived at after trial without jury. The adjudication is reported in 4 Lawrence 209.
*2The action was in assumpsit to recover a real estate commission, the services having been performed by plaintiff, Mary E. Beckwith, as real estate salesman but recovery being sought in the right of the real estate broker for whom she worked. This broker was Erie Home Building Company, a corporation, and its president was Wilburforce Andrews. As pointed out in our previous opinion, it is the theory of the Real Estate Brokers License Act of May 1, 1929, P. L. 1216, 63 PS §§431-441 that suit for a real estate commission may be brought only by a broker; that sale may actually be made by a real estate agent of lesser rank than a broker, known as a salesman; but that the salesman can receive compensation only from a broker. This plainly imports the necessity for each real estate agent to secure a license as a broker or to seek protection, as it were, under the aegis of some licensed broker. . . .
The most interesting point raised by the exceptions relates to the right of Mary E. Beckwith to participate as party plaintiff in the suit. Section 16 of the Act of 1929, 63 PS §446, provides that no suit for a real estate commission by anyone except a real estate broker shall be brought and section 15(6) of the act, as amended by the Act of May 25, 1945, P. L. 1023, 63 PS §445, provides that “no real estate salesman shall accept or receive compensation of any kind from any person other than the licensed real estate broker by whom he is employed”, etc. Mary E. Beckwith was not a broker, only a salesman. By her contract with Erie Home Building Company, plaintiffs’ exhibit C, she was to receive 40 percent of the commission if she produced the “listing” and someone else from the office sold the property, 60 percent if another produced the listing and she sold the property, 100 percent if she both produced the listing and sold the property. In the present case she produced the listing of defendants’ property, as appears from finding of fact numbered 2, and she sold it at a price satisfactory to defendants, as *3appears from findings numbered 3 to 5, inclusive. She is therefore entitled to all the commission.
Can Mary E. Beckwith, under these circumstances, maintain suit either in her own name or in the name of the Erie Home Building Company? At the outset it must be observed with approval that all possible parties plaintiff appear of record. Since, as pointed out in our former opinion, Procedural Rule 2002 does not apply, the problem is governed by the general principle that, if all proper parties plaintiff appear of record the manner in which one beneficially interested appears is unimportant because the record may be amended at any stage: Paxos v. Jarka Corp., 314 Pa. 148, 151; Aiken, to use, v. Mayberry et al., 128 Pa. Superior Ct. 15, 19; Act of 1858, P. L. 243, 12 PS §534. Amendment may be allowed even in the Supreme Court: M. E. Church of Franklin v. Equitable S. Co., 269 Pa. 411, 415.
The contention that, because all of this recovery goes to the salesman to the exclusion of the broker, the Real Estate Brokers Act is in some way violated, is unsound. It is enough for the law to find the contract between Miss Beckwith and Erie Home Building Company, supported by a valuable and a mutual consideration: A. L. I. Restatement of the Law of Contracts, §81; Real Estate Co. of Pittsburgh v. Rudolph, 301 Pa. 502. Who are we to say the company should not have contracted to allow her the full commission when she did all the work? Perhaps in the number of customers brought into the office by her or the effective selling of their own listed properties by her the company is amply repaid. It is a wise businessman who contents himself with a reasonable profit from the efforts of a capable and enterprising subordinate. How the employer takes his profit is up to him. So long as the real estate salesman is brought under the responsibility of the real estate broker the law is satisfied. *4Furthermore, where a suit is brought to use it does not lie in the mouth of defendant to deny the equitable title of the use plaintiff: Penna. Co., etc., to use, v. Lebanon B. & L. Assn., 337 Pa. 316. To denounce, as somehow fraudulent and tending to promote evasions of the act, an arrangement whereby the salesman takes from the broker all'the commission in a particular sale is to overlook the impossibility of regulating all the details of the contract between real estate broker and real estate salesman. Beyond requiring a license from broker and salesman and providing how suit shall be brought on the contract the law has not attempted to go.
But according to defendants’ contention the evidence of Mary E. Beckwith discloses the lack of any connection between the company and its president and the contract in suit. She spoke of “I” and “me” with reference to the contract; but she also testified to her employment by the company. The testimony of an agent is always competent to prove agency: Stern v. Dekelbaum, 153 Pa. Superior Ct. 452, 455. To be sure she wavered somewhat when asked whether Erie Home Building Company or Wilburforce Andrews, its president, was her employer and answered both ways. The statute, however, is difficult of interpretation and her meaning is clear; she worked as salesman under these licensed brokers.
The only evidence on the point is the testimony of Miss Beckwith; no one says she did not work for the company, defendants contenting themselves with denying any disclosure by Miss Beckwith of her agency.
Is the claim sued upon the subject of a suit to use under our practice? Defendants’ sixth exception is directed at our conclusion that suit should have been brought by the Erie Home Building Company to the use of Miss Beckwith. Defendants in opposition cite 2 Standard Pa. Practice 316. The decision of this point *5is not necessary to a decision because defendants’ obligation to pay is to the Erie Home Building Company, broker plaintiff. Miss Beckwith, the salesman, could not recover alone. We might therefore refuse her any right to participate as plaintiff in this action, remitting her to a second action against her employer under section 15 of the act (63 PS §445). But one purpose of suits to the use of another is to prevent unnecessary litigation. Why require payment to the broker when, by the broker’s own act, the money is already payable to the salesman? In their discussion of the case defendants overlook the power to assign future rights. This is explained in A. L. I. Restatement of the Law of Contracts §154 as follows:
“(1) Except as stated in §151, a right expected to arise in the future, under a contract or employment in existence at the time of the assignment, can be. effectively assigned.
“(2) An assignment of a right expected to arise under a contract or employment not then existing is operative only as a promise by the assignor to assign the right and: an authorization to the assignee to enforce it, but neither imposes a duty upon the obligor nor precludes garnishment by the obligee’s creditors.”
See also Philadelphia v. Lockhardt, 73 Pa. 211; East Lewisburg L. & M. Co. v. Marsh, 91 Pa. 96; Baeder’s Estate, 224 Pa. 452; Patterson et al. v. Caldwell et al., 124 Pa. 455.
Section 151 of the Restatement exempts from the rule quoted above an assignment “forbidden by statute or by the policy of the common law”. Section 16 of the Real Estate Brokers License Act (63 PS §446) forbids any action in our courts by any person for compensation for selling real estate unless such person is a real estate broker. Does this suit to use violate the statute? The question is a close one but we believe this suit may be sustained as combining two suits. If we are wrong *6the main action is not defeated; the broker may recover; the use action alone is lopped off.
This covfers defendants’ exceptions except those numbered 7 to 10, inclusive, which are purely formal. We have not, however, decided the case without consideration of Tice v. Easterday, 148 Pa. Superior Ct. 457, a case not cited by either party to this action. There plaintiff, a real estate broker failed to show that he was actually licensed when he made the sale. The court refused to enter judgment for defendant but granted a new trial.
In the present case plaintiff, Mary E. Beckwith, has failed to show that she was actually licensed in August of 1942 although she showed receipt of a license issued at sometime during the year. Our case differs from Tice v. Easterday, supra, however, in that here the statement of claim avers that Miss Beckwith was duly licensed; the affidavit of defense fails to deny the averment; plaintiffs might have offered the undenied averment in evidence but apparently overlooked doing so; plaintiffs also apparently overlooked completing their evidence on the point; the objection is not raised by any exception; and finally, the subject is not mentioned in defendants’ final brief. Under these circumstances it seems a futile thing to grant a new trial. This is especialy true since the case was tried without a jury and there would be no point in having the trial repeated. . . .