
    No. 12,420.
    Black Forest Realty and Investment Company v. Clarke.
    Decided November 25, 1929.
    
      Messrs. McGarry & Shoup, for plaintiff in error.
    Mr. Thomas I. Purcell, for defendant in error.
    
      In Department.
    
   Mr. Justice Butler

delivered the opinion of the court..

The Black Forest Bealty and Investment Company, being at the time engaged in a selling campaign to dispose of its own property, employed James C. Clarke as its “general sales manager,” to have “supervision and control, subject to the board of directors, * * * of all sales of lots owned by” the company, ‘ ‘ and of all salesmen engaged in our 1928 selling campaign.” As compensation for his services, Clarke was to receive a fixed salary of $100 per week plus five per cent of the purchase price on all sales upon which at least 30 per cent of the purchase price shall have been paid. He sued to recover a balance due him for compensation. He recovered judgment for $379.75, which was the total unpaid compensation; that is to say, the balance due on both the fixed salary and the percentage of the purchase price of lots sold.

The company claims that Clarke had no real estate brokers’ license such as chapter 147, S. L. of 1925, requires, and that for this reason he is not entitled to recover the percentage on the price of lots sold.

Not until the day of the trial was this issue tendered. At that time it was sought to amend the answer so as to present the issue. The court denied the application for leave to amend, and it is said that this ruling was erroneous. We do not agree with counsel’s contention. The statute relied upon has no application to the situation disclosed by the record in this case. Clarke was merely an employee of the company, engaged in the company’s business; he was not a broker within the meaning of the statute. The proposed amendment therefore presented. no defense. But, if it were otherwise, the delay in applying for leave to amend would justify the court, in the exercise of its discretion, in denying the application.

The judgment is affirmed.

Mr. Chief Justice "Whiteord, Mr. Justice Moore and Mr. Justice Burke concur.  