(Dissenting):
I am impelled to dissent on the grounds that the defendant bargained for and received the benefit of the plaintiff’s service, it suffered no disadvantage because of the technical fact that the plaintiff was not licensed as a real estate broker, and that under those circumstances it is contrary to fundamental principles of justice and equity that the defendant is allowed to repudiate its agreement to pay for plaintiff’s services.1
The court’s decision would be correct if the service rendered involved a high degree of education, training or other special qualification so that, in its absence, there might be some hazard to the public welfare. In such an instance, it is understandable that a person who undertakes to render such a specialized service without a license should be penalized by not being permitted to recover therefor. On the other hand where the service rendered to another does not require such specialized qualifications, it seems to me but an egregious injustice to permit one to ask for, receive, and take the benefit of the service and refuse to pay for it upon a technicality.
I have no disagreement with the proposition that the licensing statute should be so construed and applied as to effectuate its *853purpose.2 But that purpose is not to prevent willing and industrious persons from employing their initiative and enterprise in rendering a useful service in order to make a living therefrom, nor to enable designing or scheming persons to take advantage of their efforts, then refuse to pay them. On the contrary, the only legitimate application of the statute should be to protect the public in areas where it needs protection. In regard to that proper application, it should also be kept in mind inasmuch as the statute is one which places limitations upon the freedoms which everyone should enjoy of earning their livelihood, it should be strictly construed against any such incursion upon those fundamental liberties.
The illogic and incongruity of giving the statute an over-broad interpretation is seen in the fact that if that is done, it would include anyone who in any way aids or assists in such matters, even including a chauffeur who drives a party to see the property, the stenographer who types the contract, and the filing clerk who keeps the files in order.
I do not see how it would defeat or impair the true purpose of the licensing statute to permit a person who acts only as a “finder,” and who does nothing in regard to negotiating the sale, nor the formulation of a contract, nor as to the condition of title, nor any other details about the transaction, to recover for his services.3 In support of this position, it is submitted that, as shown in the main opinion, there is no significant difference between the wording of our own statute and that of California; and that their cases of Tyrone v. Kelley,4 and others the main opinion cites, are grounded upon sound reasoning and principles of justice which would lead to a just result if applied in this case.
Reverting to the facts in the light of what has just been said above, it should be noted particularly that the only authority given the defendant under the agreement, and the only thing that it is claimed to have done, was to act as a “finder” in this very substantial transaction; and that this did not in any way intrude within the prerogatives and responsibilities which require the special training and qualifications of a real estate broker.
It is for the foregoing reasons, and upon the very simple and fundamental principle of justice that no one should profit from the efforts of another without paying compensation therefor, that I would not permit the defendant to break faith with its commitment under the agreement by invoking the technicality of a broker’s license requirement upon the plaintiff, and thus perpetrating what seems to be an obvious cheating of the plaintiff out of the just rewards for its efforts.5
. See dissenting opinions in Mosley v. Johnson, 22 Utah 2d 348, 453 P.2d 149 (1969); Meridian v. McGlynn/Garmaker Co., Utah, 567 P.2d 1110 (1977).
. Whitaker v. Arizona Real Estate Board, footnote 8, main opinion.
. See Andersen v. Johnson, footnote 1 main opinion, especially Justice Wade’s concurring opinion.
. See footnotes 9 et seq., main opinion.
. 6A Corbin, Contracts, at Section 1512 states that “the real defrauder seems to be the defendant who is enriching himself at the plaintiffs expense.”