¶1(dissenting).
¶2In my opinion this case is not ruled by our decision in Mitchell v. Allison, 51 N.M. 315, 183 P.2d 847, handed down two years prior to the enactment of the Act in question. Prior to 1949 an agreement authorizing or employing an agent or broker to purchase or sell real estate for a commission or compensation did not have to be in writing as is now required by law. We there held that contracts for the employment of an agent or broker to buy or sell, real estate were not regarded as within the operation of the English statute of frauds for the reason that they were not included therein. However, Section 1, Chapter 19, of the Session Laws of 1949, expressly requires such agreements to be in writing. It provides: “Any agreement entered into subsequent to the first day of July, 1949, authorizing or employing an agent or broker to purchase or sell lands,, tenements or hereditaments or any interest in or concerning them, for a commission or other compensation, shall be void unless-the agreement, or some memorandum ornóte thereof shall be in writing and signed by the person to be charged therewith, or some other person thereunto by him lawfully authorized.” (Emphasis mine.)
¶3The majority opinion says: “It seems clear enough that what the legislature intended to nullify was oral agreements to pay a commissionIf the .legislature had intended to have the Act operate as contended by the majority, it would have employed language different than that now in the act. The intent is so clearly and unambiguously expressed that there is no room for the office of construction; and no standard should be held sufficiently strong to lead to a construction of this Act which does not give effect to the plain legislative; intent.
“Where the language of a statute is transparent, and its meaning clear, there is no room for the office of construction. There should be no construction where there is nothing to construe.” Lewis v. United States, 92 U.S. 618, 621, 23 L.Ed. 513.
“Unless there is ambiguity in a statute, construction is uncalled for.” Atlantic Oil Producing Co. v. Crile, 34 N.M. 650, 287 P. 696.
¶4The question of whether or not the em•ployment of an agent or broker to purchase or sell real estate for commission •or compensation was required under the Statute of Frauds, to be in writing prior to the passage of Section 1624 of the California Civil Code, came before the Supreme Court of that State in Heyn v. Philips, 37 Cal. 529. The same question was before this court in Mitchell v. Allison, supra. The court, speaking through Chief Justice Sawyer, s.aid:
“The question in this case is, whether the contract sued on and proved is a contract ‘for the sale of any lands, or interest in lands,’ within the meaning of the eighth section of the Statute of Frauds, and which is required to be in writing, and subscribed by the party to be charged.
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“It does not appear to us that this is -a contract for the sale of land, or an interest in land, within the meaning of the Statute of Frauds. It was a mere contract of employment between the plaintiff and defendant. There was no sale of land from the defendant to the plaintiff. The plaintiff was simply employed to find a purchaser for defendant’s land at a given price to be realized by defendant, and the compensation to be received by plaintiff was to be such sum as he could get for'the land over the given price.
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“The contract was substantially one of employment to find a purchaser of land, and not as between the parties a sale or agreement to sell land, or any interest in land.”
¶5Subsequent to the rendition of the opinion in the above case, the California Legislature passed Section 1624, which provides: “An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission; … [is] invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or by his agent”.
¶6In passing upon this provision, the court in McCarthy v. Loupe, 62 Cal. 299, 303, said: “Since the Code, no express contract in a case like this can be of any avail unless in writing. This particular kind of contract can only be proved by the introduction of an instrument in writing. Therefore, the plaintiff failed to prove an express contract, and it was upon an express contract alone that he was entitled to recover.”
¶7See also Myers v. Surryhne, 67 Cal. 657, 8 P. 523; Proulx v. Sacramento Valley Land Co., 19 Cal.App. 529, 126 P. 509; Holland v. Flash, 20 Cal.App. 686, 130 P. 32; Weatherhead v. Conney, 32 Idaho 127, 180 P. 760; Peters v. Martin, 69 Ind.App. 436, 122 N.E. 16; Nelson v. Webster, 83 Neb. 169, 119 N.W. 256; Leimbach v. Regner, 70 N.J.L. 608, 57 A. 138; Lueddemann v. Rudolf, 79 Or. 249, 154 P. 116, 155 P. 172; Baugh v. Darley, 112 Utah 1, 184 P.2d 335.
¶8Washington has a statute similar to the California Act and our,s.. The Supreme Court of that state, in construing theirs in Carkonen v. Alberts, 196 Wash. 575, 83 P.2d 899, 902, 135 A.L.R. 209, said:
“Is appellant’s oral agreement employing respondents as agents or brokers to negotiate on appellant’s behalf the purchase of real estate under the ban of that portion of the Statute of Frauds, reading as follows? ‘In the following cases specified in this section, any agreement, contract and promise shall be void, unless such agreement, contract or promise, or.some note or memorandum thereof, be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized; that is to say; … an agreement authorizing or employing . an agent or broker to sell or purclwse real estate for compensation or a commission/' Rem.Rev.Stat. § 5825. ■■ (Italics ours.) ■
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“The insuperable obstacle to enforcement of respondents’^ oral promise to negotiate purchase of land for appellant is the-provision of the statute …' of frauds that an agreement employing an agent or broker to sell or purchase real estate for' compensation shall be void unless such: agreement be in zvriting and signed by the-party to be charged therewith. That provision applies to contracts between the-owner of the land to be sold and the agent, he employs to make or negotiate the,sale,, and that provision also applies to a purchaser of land or one desiring to purchase land and the agent he employs to make the purchase or negotiate the purchase for him. The statute declares, without qualification, that an oral agreement -employing an agent or broker to sell or purchase real estate for compensation or a commission shall be void. • If the legislature. intended to limit the statute to Contracts between brokers and sellers and intended to exclude contracts between brokers and purchasers, it would have employed language different than that now in the statute.”
¶9See also Dooly v. Pinson, 145 Ala. 659, 39 So. 664, Hackney v. Butts, 41 Ark. 393.
¶10In construing their statute the Supreme Court of Michigan in Slocum v. Smith, 195 Mich. 281, 161 N.W. 830, said: “The history of the reasons leading up to this legislation is persuasive that the law was intended to apply • to an agreement for a purchase as well as a sale because one is a necessary complement of the other. Both are clearly within the mischief which was intended to be remedied by the Legislature, and we think a reasonable and liberal construction of the statute will make it apply to an agreement for a purchase as well as to a sale of real estate.”
¶11To the same effect is' the interpretation of statutes similar to ours by the courts of other’ states. The text books American Jurisprudence, Corpus Juris'Secundum, Restatement of Law and Ruling Case Law all agree that such is the interpretation of the jurisdictions upon which the question has been passed. Nothing, in my opinion, could be accomplished by further quotations from decisions and the text books mentioned. Since all the decisions to which I have been cited and all of which I have been able to find are unanimous in their interpretation of similar statutes and the reasons given' by the- respective courts of such holdings are sound, I conclude that inasmuch as plaintiffs’ alleged contract was admittedly oral, they were not entitled to maintain their suit, and the court did not err in dismissing their, complaint.
¶12The majority saw fit to rewrite its opinion after receiving my dissent in order to try to explain the pronouncement appearing in Heyn v. Philips, supra, and McCarthy v. Loupe, supra. However, I am satisfied with the reasoning announced in both opinions, as well as what was said in Carkonen v. Alberts, supra, and further discussion on this point need not be pursued further.
¶13We do not have the same factual situation which confronted the court in Stromerson v. Averill, 22 Cal.2d 808, 141 P.2d 732, 737, cited by the majority. In that case there was a contract, upon which a constructive trust could be declared, whether enforceable or not. In the case at bar there was no contract. If there had been one, even if unenforceable, it would have •been the basis for a constructive trust. It is interesting to note the observation made by the plaintiffs in their brief on page. 17, which reads: "In fact, there was no enforceable agreement, whether oral or in writing, until Dunn contacted the owners as to the terms of the sale.”
¶14In other words there was no meeting of the minds, no consideration,-no mutual-, ity of agreement nor mutuality of obligation.
¶15Could it be said that an agency was created by the mere ■ allegations appearing in the complaint “that the plaintiffs requested the defendant, Dunn, to attempt to purchase the land in question for them or to ascertain the price wanted for it,” so as to give rise to a constructive trust in favor of the plaintiffs? I believe not.
¶16Judge Traynor (dissenting) in Stromerson v. Averill, supra, said: “If there was no agency there could be no trust under the authorities relied upon in the majority opinion.”
¶17It follows from what has been said that I think the judgment should be affirmed. The majority holding otherwise, I dissent.