Alexander v. Neal

• Decision Date: 23 September 1961
• Docket Number: No. 53,J,53
• Citation: 110 N.W.2d 797,364 Mich. 485
• Parties: Robert H. ALEXANDER, doing business as Alexander Roofing Company, Plaintiff and Appellant, v. Donald NEAL and Harry P. Rosin, also known as Henry P. Rosin, Defendants and Appellees. une Term.
• Court: Michigan Supreme Court

Page 797

110 N.W.2d 797

364 Mich. 485

Robert H. ALEXANDER, doing business as Alexander Roofing Company, Plaintiff and Appellant, v. Donald NEAL and Harry P. Rosin, also known as Henry P Rosin, Defendants and Appellees.

No. 53, June Term.

Supreme Court of Michigan.

Sept. 23, 1961.

Donald G. McHenry, Detroit, for plaintiff and appellant.

Henry P. Rosin, Detroit, for defendants and appellees.

Before the Entire Bench.

SMITH, Justice.

This is a matter of statutory interpretation. Our state has a statute 'to provide for the licensing and rights of any person to engage in business as a residential builder [defined in § 2] or residential maintenance and alteration contractor [also defined in § 2] in certain counties * * *.' ¹ The plaintiff is characterized by the trial judge as a 'residential contractor' and it is not denied that he had not secured a license to so act. The question in the case is whether, lacking such license, he may maintain, an action for the cost of a new roof. The trial court held not. 'The plaintiff,' it was held, 'is clearly a member of the class prohibited from acting without a license. * * * The plaintiff's declaration will therefore be dismissed * * *.'

The precise provision of the statute with respect to the phase of the case is as follows:

'No person engaged in the business or acting in the capacity of a residential builder and/or residential maintenance and alteration 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 act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract * * *.' ²

Under the same section of the act, a violator may be subjected, also a criminal penalty:

'shall * * * be punished by a fine of not to exceed $500.00, or by imprisonment in the county jail for a term of not to exceed 6 months, or by both such fine and imprisonment in the discretion of the court.' ³

Statutes and municipal ordinances similar in purport to the above are a commonplace in this country. ⁴ The police power is thus employed to protect the public from incompetent, inexperienced, and fly-by-night contractors. ⁵ In the case before us there is no challenge to the constitutionality of the statute, nor to the penality for its violation here involved, namely, prohibition against action for collection of compensation, a not uncommon provision in such statutes. Even where the statute contains no such express prohibition, the courts frequently deny recovery on the ground that 'a contract made in violation of a police statute enacted for public protection is void and there can be no recovery thereon.' ⁶ See, also, Turner v. Schmidt Brewing Co., 278 Mich. 464, 270 N.W. 750, an action for work, labor and materials employed in the execution of a building contract violative of that portion of the liquor control act prohibiting a wholesaler from assisting other vendors financially, wherein we held (syllabus):

'One who enters into a contract to perform services or furnish materials in violation of statute which has to do with public health, morals and safety and contains a penal provision for its violation cannot maintain an action to recover for such services or materials.'

Here the attack made by appellant may best, perhaps, be expressed in his own statement of the three questions he asserts are involved:

'1. Are defendants, the downers of a 26 unit apartment house with 5 stores on the ground floor, entitled to dismissal of a suit for cost of a new roof on the sole ground that Act 208 of 1953, Stat.Ann. 18.86(1) applies in regard to requiring the roofer to have a Residential Builder and/or Maintenance and Alteration Contractor's license, where admittedly no such license is required if it be commercial property?'

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'2. Where the trial Court dismissed the suit on pre-trial and denied a re-hearing motion, and no facts were alleged in contravention of plaintiff's reply setting forth the property was a 30 unit commercial apartment with 5 stores held by 'absentee landlords as commercial investment property and not as residential property,' should, as a matter of law, judgment have been given for defendants, where it was agree on pre-trial this was the only question?'

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'3. As a matter of law, on the above facts, should judgment be given for plaintiff?'

Disregarding the argumentative matter in the questions put, which should under our rules ⁷ be reserved for that portion of the brief devoted to 'Argument', his propositions, as expressed here and elsewhere reduce to this: The apartment house in question is not a 'home', and since the purpose of the legislation is said to be to protect only the owners of 'homesteads' or 'personal residences' it has no application to the activities of the contractor before us when he worked on a combination residential and commercial structure. In support of this theory appellant cites various dictionary definitions of the word 'home,' none of which seems conclusive, since such terms as 'the place where one resides', 'one's dwelling place', or 'the habitual abode of one's family', are generally as applicable to apartments as to homesteads. Moreover, as reference to any standard digest will disclose, the word home, as used in legislation, has many meanings, depending upon the purpose of the act. Thus it may refer 'to a particular spot, or to a whole country', ⁸ to residence or domicile, ⁹ or, indeed, to a place...