Catlin v. Oak Grove Co.

Headnote

1. Pleading—Special Plea—-Filing at Trial.

In an action for services rendered by plaintiff as real estate broker, defendant’s request, made during the trial, for leave to file a special plea, alleging that plaintiff did not have a broker’s license, at the time of sale, will be granted on proper terms.

2. Continuance—Amendment.

In an action for services rendered by plaintiff as real estate broker, where leave to file a special plea, alleging that plaintiff did not have a broker’s

license at the time of sale, was granted on application of the defendant, a continuance of the case will be had.

3. Pleading—Leave of Court to Amend—Condition—Costs.

In an action for services rendered by plaintiff as real estate broker, where leave to file a special plea, alleging that plaintiff did not have a broker’s license at the time of sale, was granted on application of the defendant and the case continued, costs of the term will be imposed upon the defendant.

Action by Richard H. Catlin against the Oak Grove Company, a corporation. Application by defendant to file special plea during the trial: Pleadings amended. by filing special plea, case continued, and costs imposed upon defendant.

Action to recover for services rendered by the plaintiff to the defendant in the sale of real estate. Narr. filed with common counts and bill of particulars. Pleas; non assumpsit, payment, set off, tender, statute of limitations—non assumpsit relied on.

During the course of the plaintiff’s testimony, in which he stated that the defendants had agreed to pay him five per cent, commission on the price obtained for certain land sold by him for the defendants to the Delaware State Fair, Incorporated, counsel for the defendant asked leave to file a special plea alleging, in substance, that at the time of performing the services alleged in the declaration plaintiff had not procured a state license to carry on the business of a real estate broker in the state of Delaware, citing Gatta v. P. B. & W. R. R-, 1 Boyce, 299 76 Atl. 56 . Counsel for plaintiff objected and stated that the issue sought to be raised by the special plea could not be raised without it and that, therefore, plaintiff was not prepared to meet the issue; and if the defendant was allowed to file the plea the case should be continued and terms should be imposed. Counsel for defendant replied that by the bill of particulars the action was

for work, and labor done while the proof had disclosed a special contract; no notice of special contract having been given by the pleadings.