The opinion of the court was delivered by
J. H. Simmons sued Frederick A. Oatman and his two partners for a fee or commission for services rendered them as scout, agent or broker in assisting them in the purchase of a quantity of broom corn. He recovered a judgment, and the defendants appeal.
1. The defendants assert that there was an entire failure to show that they either expressly or impliedly employed the plaintiff to perform any services in their behalf, or that they accepted or ratified acts on his part claimed to have been done for them.
There was evidence tending to show these facts: The defendants were in the business of buying and selling broom corn, operating in southwest Kansas, their headquarters being at Wichita. The plaintiff was engaged in buying, selling, looking up and locating broom corn. In 1914 he had bought broom corn from them and sold it to them, turned broom corn to them on a commission and bought it for them on commission. In November, 1915, the plaintiff met Oat-man at Liberal, who said to him: “I want you to keep me informed and let me know where you are, because I want you to buy some broom corn later on.” In the same month the plaintiff learned that one J. H. Johnson, who had assembled some 550 tons of broom corn, most of which was in a storehouse in Liberal, was willing to sell it all because of ill health. Johnson told the plaintiff that he wanted all he could get but would sell it right if the plaintiff would find a buyer — that he would as soon the plaintiff would have the money he could get out of it as anyone else. The plaintiff at once wired to Roy Findlay, the defendants’ agent, who was then on his
That some of this evidence was contradicted is of course not now important. We regard.it as sufficient to authorize the jury to conclude that the defendants knew that a part of the plaintiff’s business was to find broom corn for buyers; that they understood his telegram to Findlay to be an offer of his services in that capacity; that they invited and accepted his assistance, profited by the information he had given them, asked him to show them the broom corn,
2. The plaintiff’s testimony that Keeley asked him to reduce his commission was objected to on the ground that Keeley had not been shown to have authority to bind the defendants by a contract to pay the plaintiff for his services, or to have attempted to do so. The plaintiff testified that Keeley was the field buyer and manager for the defendants; that the plaintiff had bought broom corn for him and been paid by him with the defendants’ checks. We hold the evidence to have been competent as tending to show that it was understood by the defendants’ representatives who were engaged in the transaction that the plaintiff was to be compensated by the. defendants for his services, and that they were worth more than $2.50 a ton.
3. The petition contained language which the defendants interpret as meaning that a custom in the broom corn business existed by which a broker or agent was entitled to compensation for services rendered without employment. The plaintiff took the position throughout that the allegations regarding custom related only to the matters (where there had been an actual employment) of the commission to be paid in the absence of an agreement on.that point, and the character of services to be rendered to earn such commission. The defendants regard expressions in the instruction as countenancing the idea that a recovery might be based on a 'custom to pay for volunteer services. Taken as a whole, however, we think the instructions made it sufficiently clear that there could be no recovery by the plaintiff without proof of his having been employed by the defendants. It is suggested that in the course of the trial the plaintiff disavowed a claim of there having been a contract of employment, but the meaning appears to have been that an express contract was not at the time sought to be proved by a particular witness. The defendants complain that an offer by them to show that there was no custom to pay for volunteer services was rejected, while the court submitted to the jury a special question in effect asking whether such custom existed. That interrogatory, however, we regard as relating to the custom as to what services an-agent who had been employed was required to render in order to earn the customary commission.
4. It is contended that the plaintiff cannot recover because he had not obtained either a state or federal license as a commission merchant. In this transaction the plaintiff had not acted as a com
5. The plaintiff had, however, no federal license as a commercial broker. The portions of the act of congress which affect this phase of the matter read:
“That oa and after November first, nineteen, hundred and fourteen, special taxes shall be, and hereby are, imposed annually as follows, that is to say:
“Fourth. Commercial brokers shall pay $20. Every person, firm, or company whose business it is as a broker to negotiate sales or purchases of goods, wares, produce, or merchandise, . . . shall be regarded as a commercial broker under this Act.
“And every person who carries on any business or occupation for which special taxes are imposed by this Act, without having paid the special tax herein provided, shall, besides being liable to the payment of such special tax, be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not more than $500, or be imprisoned not more than six months, or both, at the discretion of the court.” (38 U. S. Stat. 750, 751, 753:)
This court has held that where a city ordinance imposes a license tax and forbids and punishes by fine the carrying on of a business to which such tax applies without paying it, no recovery can be had for services rendered in the course thereof by one who had not paid the tax. (Yount v. Denning, 52 Kan. 629, 35 Pac. 207.) It has also, while criticizing the doctrine there applied and expressing doubts of its soundness, refused to overrule the case, but explicitly upon the principle of stare decisis and upon the specific ground that the legislature by its inaction should be deemed to have accepted the rule of statutory construction there adopted, and with the suggestion that the rule should be restricted rather than enlarged. (Draper v. Miller, 92 Kan. 275, 140 Pac. 890, and cases there cited.) A distinction is to be noted between that case and this one. There the ordinance in so many words provided that no person should carry on the business without having paid the tax and obtained a license to do so. Here the statute imposes the tax and without in terms forbidding engaging in the taxed occupation prior to paying
The judgment is affirmed.