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Joseph v. Drew

Court of Appeals of California
Mar 2, 1950
215 P.2d 80 (Cal. Ct. App. 1950)

Opinion

No. 17436

3-2-1950

JOSEPH et al. v. DREW et al.

Hindin, Girard, Lewis & Green, Los Angeles, for appellants. Aaron Sapiro, Los Angeles, for respondents.


JOSEPH et al.
v.
DREW et al.

March 2, 1950.
Rehearing Denied March 20, 1950.
Hearing Granted April 27, 1950. *

Hindin, Girard, Lewis & Green, Los Angeles, for appellants.

Aaron Sapiro, Los Angeles, for respondents.

DRAPEAU, Justice.

Plaintiffs are architects licensed to practice in California. Prior to October 12, 1946, they had an associate, P. B. Fletcher, a licensed building contractor but not an architect, and under the name of Joseph, Fletcher and Joseph, a copartnership, the three men were engaged in rendering architectural and building contracting services to the general public.

Mr. Fletcher died on October 12, 1946, and thereafter plaintiffs proceeded to liquidate the partnership, continuing the business under the name of Joseph and Joseph and limited themselves to the practice of architecture.

During the existence of the partnership, defendants retained the firm to prepare plans and specifications for the construction of several proposed buildings, and paid the partnership from time to time on account of services rendered and for expenses a total sum of $1,254.50.

The instant action was brought to recover for services so rendered. The answer, among other things, set up a special defense to the effect that since P. B. Fletcher was not an architect plaintiffs were not legally competent or entitled to accept or collect fees for services as architects as members of the partnership under section 5539 of the Business and Professions Code, in accordance with sections 5536 and 5537 of the same code.

Trial was had upon the issues presented by the first amended complaint, the answer and the cross-complaint of defendants by which they sought recovery of the money paid by them on account.

It was stipulated and the court found that the partnership rendered architectural services to defendants of the reasonable value of $4,644. However, the court further found that said firm was not entitled to collect any compensation for such services and gave judgment in favor of defendants on their cross-complaint.

Plaintiffs appeal from the judgment and urge that failure to comply substantially with section 5539 of the Bus. & Prof. Code by a partnership of two licensed architects and a person who is not an architect, will not bar recovery by the liquidating partners for the reasonable value of services rendered by the two architects.

It is conceded that their advertising and other matters dealing with the general public in which the partnership name of Joseph, Fletcher and Joseph was used, carried the further designation 'Architectural and Mechanical Engineering,' and that the firm was listed in the telephone directory as 'Architects.'

The pertinent sections of the Bus. & Prof. Code are:

5536. 'Unauthorized practice a misdemeanor: Advertising. It is a misdemeanor punishable by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment, for any person, without a certificate, to practice architecture in this State or to advertise or put any sign or card or other device which might indicate to the public that he is an architect or that he is qualified to engage in the practice of architecture.'

5539: 'Partnerships with uncertificated persons: Names used. This chapter does not prevent an architect from forming a partnership with persons who are not architects but the name of the architect shall appear as the architect on all instruments of service and in no case may the other members of the partnership be designated as architects.'

Appellants argue that since section 5539, supra, expressly provides for a partnership between licensed and unlicensed architects within certain limitations as to the conduct of the business, but no provision is made for penalties in the event of failure to comply with such limitations, the partnership herein is not barred from recovery of the reasonable value of the services rendered by qualified and licensed members of the firm.

The penalties for unauthorized practice are imposed by section 5536, supra. Moreover, it is made a ground for disciplinary action by section 5582 of the same code, for a licensed architect to aid and abet in the practice of architecture any person not authorized to do so, or any person not registered as a civil engineer.

In order for a partnership to escape the penalties imposed by section 5536, it is only necessary that the name of the architect member of the firm appear on all instruments of service, and that the other members thereof in no case be designated as architects. Sec. 5539, supra.

The evidence is uncontradicted that the partnership here was designated 'Joseph, Fletcher and Joseph, Architecture--Mechanical Engineering' upon the many drawings, plans and specifications submitted by the partnership and presented as exhibits at the trial, only one of which carried the designation required by section 5539, to wit: 'O. G. Joseph, Architect & Civil Engr. Graeme Joseph, Archt. License C-483, C 583 & 6382'

appearing on blueprint plans submitted to the City Building Department.

Appellants here rely upon that one exhibit and the quoted designation as proof of compliance with the statutory requirement. They assert that, since the testimony of Oscar Joseph stands uncontradicted that the term 'instruments of service', as used in section 5539 meant, not working papers or preliminary drawings, but had reference only to final instruments, the only obligation imposed upon the partnership was to designate the names of the architects on such final draft.

This court has been cited to no judicial interpretation of the term 'instruments of service'. However, it is used in several sections of the Business and Professions Code here under consideration. Section 5537 refers to 'plans, drawings, specifications, instruments of service, or other data for buildings'; section 5538, 'plans, drawings, specifications, instruments of service or other data for labor and materials'; section 5539, 'all instruments of service'; and section 5586, to 'plans, drawings, specifications or other instruments of service.'

Such use of the term denotes no special meaning, but is rather an all-inclusive term including plans, drawings, specifications and other data relating to the practice of architecture.

It follows that there was no substantial compliance with the terms of the statute by appellants.

'A contract for architectural services to be performed in violation of the terms of the statute is void. Binford v. Boyd, 178 Cal. 458, 174 P. 56; People v. Allied Architects' Ass'n, 201 Cal. 428, 257 P. 511; Payne v. De Vaughn, 77 Cal.App. 399, 246 P. 1069; Jones v. Wickstrom, 92 Cal.App. 292, 268 P. 449.' Force v. Hart, 209 Cal. 600, 605, 289 P. 828, 830. See, also, Loving & Evans v. Blick, 33 Cal.2d 603, 607, 204 P.2d 23; Baer v. Tippett, 34 Cal.App.2d 33, 35, 92 P.2d 1028; Cash v. Blackett, 87 Cal.App.2d 233, 237, 196 P.2d 585, 588, in which latter case it was stated: 'The Public policy involved here has been determined by the legislature; it is not a subject of debate in the courts. Howard v. State of California, 85 Cal.App.2d 361, 193 P.2d 11.'

For the reasons stated, the judgment appealed from is affirmed.

WHITE, P. J., and DORAN, J., concur. --------------- * Subsequent opinion 225 P.2d 504.


Summaries of

Joseph v. Drew

Court of Appeals of California
Mar 2, 1950
215 P.2d 80 (Cal. Ct. App. 1950)
Case details for

Joseph v. Drew

Case Details

Full title:JOSEPH et al. v. DREW et al.

Court:Court of Appeals of California

Date published: Mar 2, 1950

Citations

215 P.2d 80 (Cal. Ct. App. 1950)