Opinion
10-10-1952
FRAENKEL v. WILLIAMSON. * Civ. 14961.
Jack Flinn, San Francisco, Carroll F. Jacoby, San Francisco, for appellant. John W. Hutton, King City, for respondents.
FRAENKEL
v.
WILLIAMSON. *
Oct. 10, 1952.
Rehearing Denied Nov. 8, 1952.
Hearing Granted Dec. 8, 1952.
Jack Flinn, San Francisco, Carroll F. Jacoby, San Francisco, for appellant.
John W. Hutton, King City, for respondents.
GOODELL, Justice.
This is an appeal from a judgment for defendant after the sustaining of a demurrer to the complaint without leave to amend.
There are three companion cases, Cal.App., 248 P.2d 533, in which the same plaintiff sued other defendants in similar circumstances where the plaintiff's demands are for $12,259.01, $2,633.45, and $5,064.46, respectively, and the court made similar rulings. It has been stipulated that the decision therein will depend on the court's action herein.
This action is based on a written contract for the construction of a grain elevator for respondent by appellant on the basis of 'cost plus ten per cent.' The estimated price stated in the contract was $12,383.04. During the progress of construction respondent paid $15,286.82 to appellant on account. On completion appellant demanded a total of $18,720.36 for the work, and on respondent's refusal to make any further payment appellant brought this action to recover the claimed balance of $3,433.54, plus interest, attorneys' fees and costs.
The complaint alleges that plaintiff performed the contract as an engineer. Defendant contends that the contract, pleaded as part of the complaint, shows that he did the work as a contractor, and that he does not allege, and cannot allege, that he held a contractor's license. The court adopted this view, which was the sole basis for its ruling.
Section 7028 of the Business and Professions Code provides: 'It is unlawful for any person to engage in the business or act in the capacity of a contractor within this State without having a license therefor, unless such person is particularly exempted from the provisions of this chapter.' (Emphasis added.)
Section 7031 provides: 'No person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action in any court of this State for the collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging and proving that he was a duly licensed contractor at all times during the performance of such act or contract.' (Emphasis added.)
For the purpose of the discussion it will be assumed that the plaintiff's services, or at least a substantial part of them, were rendered as a contractor.
The position of appellant is that whatever he agreed to do, and did, was within the exemption provisions of § 7049 reading as follows: 'This chapter does not apply to any construction or operation incidental to the construction and repair of irrigation and drainage ditches of regularly constituted irrigation districts, reclamation districts, or to farming, dairying, agriculture, viticulture, horticulture, or stock or poultry raising, or clearing or other work upon land in rural districts for fire prevention purposes, except when performed by a licensee under this chapter.' (Emphasis added.)
We must agree with respondent that 'The complaint, as it stands, contains no reference to farming.' Although it is alleged that plaintiff built a grain elevator, there is nothing in the complaint to show that the elevator was located, or to be located, on defendant's farm or connected or identified with farming operations, or any similar allegations to show that it was 'incidental' to farming or agriculture. Such allegations are of course necessary to show, as a matter of pleading, that plaintiff required no contractor's license while on such construction work, and to avoid the requirement of § 7031 that a license must be alleged. For these reasons the demurrer was properly sustained. But it by no means follows that the order denying leave to amend was proper, since it does not appear on the face of the complaint that it is not susceptible of amendment in the respects just outlined.
The language of § 7049 exempts 'any construction or operation incidental to * * * farming, * * * agriculture' etc. The case of Kelly v. Hill, 104 Cal.App.2d 61, 230 P.2d 864, so construed that section, and with that construction we wholly agree. The Supreme Court denied a hearing. In the case of Bowline v. Gries, 97 Cal.App.2d 741, 218 P.2d 806, where the question was, as it is here, whether a contractor's license was required, the same court had put a different construction on § 7049 but in Kelly v. Hill the court, see 104 Cal.App.2d 62, 230 P.2d 865, reconsidered what it had first said in the Bowline case.
In fairness to the trial judge it should be noted that the record shows that when this demurrer was argued Bowline v. Gries was cited and relied on by respondent (as it still is) and presumably his ruling was based on that case, where a similar question was involved. The trial court did not then have the benefit of the discussion in Kelly v. Hill, since that case was not decided until several months later.
If the complaint when amended alleges the matters suggested above, showing the grain elevator to be designed for a use which is incidental to farming or agriculture, a denial thereof will raise a clear-cut issue on that question which can then be decided, as it should be, on the merits rather than by a ruling on demurrer.
There is no reason to discuss any other points.
The judgment is reversed and the cause remanded with the direction to the Superior Court to enter an order permitting the plaintiff to amend his complaint within a reasonable time to be fixed by said Court.
NOURSE, P. J., and DOOLING, J., concur. --------------- * Subsequent opinion 256 P.2d 569.