JAMES S. WEEKS, Plaintiff and Appellant, v. MERRITT BUILDING AND CONSTRUCTION COMPANY et al., Defendants and Respondents.
Civ. No. 32777
First Dist., Div. Three.
May 8, 1974.
A petition for a rehearing was denied June 7, 1974
114 Cal.Rptr. 209 | 39 Cal.App.3d 520
Frederick A. Cone for Defendants and Respondents.
OPINION
BROWN (H. C.), J.—The sole issue presented here is whether the trial court erred in holding that appellant‘s action for compensation as аn electrical subcontractor in the construction of a highrise apartment house is barred by the provisions of
The issue was presented to the court on a stipulated statement of facts. It was also stipulated by the parties “that this special defense shall be tried first, and in the event it is not sustained, the matter will then be given a trial date on the merits.” The statement of facts disclosed that James S. Weeks, doing business as Weeks Electric, was awarded the subcontract for
In May of 1966, Mr. Weeks notified Continental that he could not complete performance of the subcontract unless Continental gave him assistance to meеt his payroll. Continental and Mr. Weeks agreed to the opening of bank accounts into which Continental was to advance monies and all progress payments from Merritt Building and Construction Co. and Singleton Corporation (hereinafter Merritt-Singleton) were to be deposited. The accounts were in the name of Weeks Electric but were to require the signatures of both Mr. Weeks and a representative of Continental. A further provision of the agreement was that Mr. Weeks would come to Oakland and personally supervise the completion of the subcontract.
From May 19, 1966, until he suffered a heart attack on or about November 1, 1966, Mr. Weeks exercised personal supervision over the performance of the subcontract and handled overall job administration.
When Mr. Weeks had his heart attack, he notified Continental that he would be unable to personally supervise the work. Continental contacted Contract Surety Consultants and a representative of Continental and Contract Surety Consultants met with Mr. Weeks. A memorandum of the meeting states that “It was agreed by Mr. Weeks that they take over the job for him, that is, the Contract Surety Consultants.”
Wаrren Brown, representative of Contract Surety Consultants, took over administration of the electrical subcontractor‘s office at the project. On November 18, 1966, Mr. Weeks executed an assignment of his rights under the subcontract to Continental. After this time, Mr. Weeks no longer had check-signing authority on the joint control accounts which continued in the name of Weeks Electric. All checks were signed jointly by Mr. Brown and Continental. He received no further progress reports concerning the project. It was Mr. Weeks’ belief that he had neither control nor the right of control over the performance of the subcontract. Joe Vavotec, the on-site superintendent, reported directly to Mr. Brown, and when he was replaced as on-site superintendent, it wаs by a man selected by Mr. Brown. Mr. Brown was paid from the joint control accounts. Contract Surety Consultants, separate and apart from any salary paid to Warren Brown, submitted bills for its services tо Continental, which paid these bills directly and not from the joint control accounts.
Warren Brown was not licensed as required by
In November 1966, the subcontract was 73 percent complete. The amount claimed as against Merritt-Singleton in this instant litigation is $37,457.22, representing the difference between the final adjusted subcontract price of $148,204.65 on the one hand and the progress payments of $109,691.76 and credits and accepted back charges in the sum of $1,592.72 on the other.
Applied literally, the language of
Respondents’ position, however, is that, under the special facts present here, the person to whom the license requirement applies is the person who actually performed the contract. Respondеnts contend that Mr. Weeks was not even the proper person to bring the suit because he had assigned all rights to the contract to Continental. This contention does not dispose of the quеstion now presented, i.e., application of the bar of
The assignment of the right to reсeive the money under the contract, in the instant case, was not the fact which brought into play the bar of
Other sections of the Contractors’ License Law (
It is grounds for discipline under
The instant case does not present a situation where relief from the bar of
Clearly, in the situation at hand, respondents did not receive “the full protection which thе statute contemplates,” which is work performed by or under the supervision of a licensed contractor. It is concluded that the trial court did not err in its decision that the present action was barred by
The judgment is affirmed.
Devine, J.,* concurred.
DRAPER, P. J.—I concur, but with extreme reluctance. Under the unusual circumstances here shown, it seems grossly unfair to place upon appellant the substantial loss involved. I cannot, howеver, find any way of articulating an exception to cover this hardship case which would not also permit future evasion by others of the salutary purpose of the Contractors’ Licensing Aсt.
A petition for a rehearing was denied June 7, 1974, and appellant‘s petition for a hearing by the Supreme Court was denied July 3, 1974.