535 P.2d 1339 (N.M. 1975), 9975, Olivas v. Sibco, Inc.

Docket Nº:9975.
Citation:535 P.2d 1339, 87 N.M. 488, 1975 -NMSC- 027
Opinion Judge:[9] Mcmanus
Party Name:B. M. OLIVAS, d/b/a Quality Drywall Company, Plaintiff-Appellee, v. SIBCO, INC., Defendant-Appellant.
Attorney:[6] Threet, Threet, Glass, King & Maxwell, Martin E. Threet, Albuquerque, for defendant-appellant. [7] Gallagher & Walker, Peter E. Gallagher, Albuquerque, for plaintiff-appellee.
Judge Panel:STEPHENSON and MONTOYA, JJ., concur.
Case Date:May 28, 1975
Court:Supreme Court of New Mexico
 
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Page 1339

535 P.2d 1339 (N.M. 1975)

87 N.M. 488, 1975 -NMSC- 027

B. M. OLIVAS, d/b/a Quality Drywall Company,

Plaintiff-Appellee,

v.

SIBCO, INC., Defendant-Appellant.

No. 9975.

Supreme Court of New Mexico.

May 28, 1975

[87 N.M. 489]

Page 1340

Threet, Threet, Glass, King & Maxwell, Martin E. Threet, Albuquerque, for defendant-appellant.

Gallagher & Walker, Peter E. Gallagher, Albuquerque, for plaintiff-appellee.

OPINION

McMANUS, Chief Justice.

This suit originated in the District Court of Bernalillo County upon a joint complaint in the nature of a declaratory judgment. A dispute arose in regard to the rights and liabilities of the plaintiff and defendant on a contract for the installation of drywall and insulation in an apartment house complex constructed by the defendant in Bernalillo County. Plaintiff was one of the subcontractors on the construction job.

Under the contract between the parties, defendant held out a 10% retainage amounting to $7,002.50. After construction was completed, plaintiff apparently failed to clean up as required under the contract and defendant claimed a setoff of $5,775.45 for the cost of removal of trash and debris, cleaning, etc. Both parties agreed to the placing in escrow of the $7,002.50 to be paid under order of the court upon the resolution of the controversy existing between the plaintiff and defendant. After hearing, the court found that the defendant-appellant was entitled to an offset against the amount in escrow of $1,749.15 and that the plaintiff was entitled to receive the remaining $5,213.35. Defendant appeals.

This appeal is based on two points, the first of which reads:

'The trial court did not have jurisdiction of the subject matter, hence the judgment entered was a nullity and the case must be reversed.'

The meat of this allegation is that the plaintiff made no allegation or proved by evidence that he was a licensed contractor pursuant to the Construction Industries Licensing Act, §§ 67--35--1 to 67--35--63, N.M.S.A. 1953 (2d Repl.Vol., pt. 1, 1974). There was no objection at any stage of the proceedings insofar as a contractor's license was concerned.

Appellant, it seems, is now trying to use the statute as a shield against paying a just obligation. We hold he cannot. Appellant relies particularly on § 67--35--33, supra, which reads:

'A. No contractor shall act as agent or bring or...

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