There was no error in refusing to dismiss tbe action as in case of nonsuit. It is true that every individual buying real estate for profit, whether as agent or otherwise, is required to pay a license tax, and that no recovery can be bad on a contract forbidden by law either in express terms or by implication from tbe fact that tbe transaction has been made an indictable offense or has been subjected to tbe imposition of a penalty. Laws 1925, cb. 101, sec. 30; Finance Co. v. Hendry, 189 N. C., 549. But we do not think tbe evidence is sufficient to show that tbe plaintiff was engaged in buying or selling real estate within tbe meaning of tbe cited statute. Respess v. Spinning Co., 191 N. C., 809. Tbe first and third assignments are therefore overruled; tbe second is abandoned.
Assignments four and five are addressed to "the court’s refusal to give tbe jury certain prayers for instructions in reference to tbe amount of tbe plaintiff’s recovery; but tbe parties, reserving their right to except, agreed, as appears of record, that tbe two issues relating to tbe amount of tbe recovery should be answered by tbe court after tbe other issues bad been answered by tbe jury. Tbe judge answered these two issues, and of course there was no reason or occasion for giving tbe instructions. There is no specific exception to bis answers, but tbe sixth assignment of error is “tbe action of tbe court in signing tbe judgment as appears .in tbe record.” This may be treated as an exception to tbe judgment, including of course tbe answers given to tbe sixth and eighth issues. Under tbe agreement they were to be answered by tbe judge, as matters of law. (R. 57.) Tbe plaintiff alleged that tbe total profit was $37,454.80 — $7,500 in cash and $29,954.80 in notes. Deducting from tbe total profit tbe sum given Peyton & Company in response to tbe second issue ($18,727.40), we have as a remainder an equal sum (a part *22in money, a part in notes), one-balf of wbicb is awarded the plaintiff by virtue of the two issues which were answered by the court. If it be 'assumed that the calculation is correct, the amount apportioned or divided between the plaintiff and Burton represents the net profit of the sale of the Roberts and the Sumner tracts, but the agreement of the plaintiff and Burton made 26 September, 1925, was confined to options on lands adjoining the Roberts property. Their agreement to divide the profits did not include the profits derived from the sale of the land of Mrs. Roberts. The profit arising from the sale of the Sumner land should be determined by the jury under appropriate instructions by the court. For the reason indicated there must be a
New trial.