Bacigalupo v. Fleming, 4769

Citation102 S.E.2d 321,199 Va. 827
Decision Date10 March 1958
Docket NumberNo. 4769,4769
CourtVirginia Supreme Court
PartiesLEO BACIGALUPO, ET AL. v. THURMAN FLEMING. Record

Wilbur M. Kessler (Cutchins, Wallinger, Wallace & Kessler, on brief), for the plaintiffs in error.

Esther S. Weinberg and Thomas A. Williams (Williams, Williams, Williams & Williams, on brief), for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

Thurman Fleming, sometimes hereinafter referred to as the plaintiff, filed a motion for judgment against Leo Bacigalupo and Edythe H. Bacigalupo, husband and wife, to recover the sum of $3,593, alleged to be due plaintiff 'by reason of a certain contract * * *, whereby defendants employed plaintiff as supervisor to manage the construction of a certain house in Henrico County, Virginia.' A copy of the contract was filed with the motion.

Defendants filed grounds of defense asserting that all sums due plaintiff had been paid. Subsequent to a mistrial, they filed amended the supplemental grounds of defense and a cross-claim. They averred that plaintiff was a general contractor as defined in Code, § 54-113(2), and that he had failed to obtain a license and register in accordance with the requirements of Chapter 7, Title 54 of Code, 1950, and, therefore, was not entitled to recover any amount from the defendants. They also denied that plaintiff had properly performed his contract, and in their cross-claim asked for damages in the sum of $6,000.

Plaintiff thereupon filed separate replications to defendants' amended grounds of defense and to their cross-claim. He alleged that the additional grounds of defense came too late, denied that he was general contractor, averred that the defendants were themselves the contractors, and that he was the agent of the defendants. He further averred that he had faithfully performed his contract, and that the house had been completed according to the plans and specifications.

At the conclusion of all the evidence, defendants moved the court to strike the evidence upon the grounds stated in their grounds of defense and because plaintiff had failed to properly account for the money paid to him by defendants. The court overruled the motion. After being instructed by the court, the jury returned a verdict for the plaintiff in the sum of $3,400, and against the defendants on their cross-claim. A motion to set aside the verdict on the ground that it was contrary to the law and the evidence, and for misdirection of the jury was overruled. Judgment was entered accordingly, defendants duly objected, and subsequently we granted this writ of error.

The controlling question for our determination is: What effect did the failure of the plaintiff, Thurman fleming, to register as a contractor and obtain the license required by the provisions of Chapter 7, Title 54, Code of Virginia, 1950, (sections 54-113 to 54-145, inclusive 1), have upon his right to maintain the action?

The pertinent and material evidence on that question is as follows:

In March, 1953, the defendants consulted Fleming with reference to constructing an addition to their home. Fleming had previously followed the occupation of real estate broker; but was, at that time, engaged in the construction of a building. He said that he had learned something about the construction of buildings through his real estate experience and by taking and graduating from a course in architecture. It appeared that he had, during the past ten years, been engaged in constructing ten or more buildings. Leo Bacigalupo was engaged in the grocery business and neither he nor his wife had any experience in the building of houses.

The conference between the parties led to negotiations for the construction of a home for defendants in Henrico County, Virginia. Fleming prepared the plans and specifications for the house, and they were approved by defendants, with the proviso that the cost of the building should not exceed $28,000 or $29,000. Fleming then obtained estimates or bids for labor and material from three or four persons or firms for each portion of the house, and recommended the acceptance of the low bids. Defendants accepted the recommendation, except in three instances, where they directed that contracts be made with their personal friends. Fleming then prepared a written contract, which was executed by both parties. It reads as follows:

'This agreement made this 11th day of March 1953, by and between Mr. and Mrs. Leo Bacigalupo, hereinafter called owner and Thurman Fleming, hereinafter called Supervisor.

'The said supervisor agrees to supervise the management and construction of home on Lloyd Avenue, Thompson Heights Henrico County Virginia, according to plans and specifications for the sum of 10% of the gross cost of construction, payments to be made in part during construction, said payments will be used to pay cost of construction during construction.

'The said owner agrees and accepts this agreement with the said supervisor and further agrees to furnish construction monies to be paid said supervisor as follows:

$2,000.00 When start of construction and agreement.

3,000.00 When First floor sub-floor is on.

4,000.00 When All brick or stone work is completed.

5,000.00 When Roof sheeting on and felted in.

4,000.00 When Plumbing is roughed-in.

5,000.00 When Plastering is completed.

Balance when house is completed.

Leo Bacigalupo (SEAL)

(Mrs.) Edythe H. Bacigalupo (SEAL)

Thurman Fleming (SEAL)'

In the specifications, the first paragraph entitled 'General Conditions' 2 refers to the plaintiff as 'The general contractor,' to the persons providing material and labor as 'sub-contractors,' and to the defendants as 'the owner.'

In the paragraph relating to 'Plastering,' approval is required from the 'general contractor.' In the paragraph relating to 'Carpentry,' it is provided: 'The drawings are to be in charge of the Contractor who is to be in charge of all the work during its progress, to explain the drawings and set off accurately for the other workmen the sizes, distances, and levels, for all parts of the building. * * *' In the paragraph relating to 'Wiring,' it is provided that the fixtures shall be selected by 'Owner.'

On March 17, Leo Bacigalupo obtained a permit from the office of the building Inspector of Henrico County. Only it, in the space provided for the name of contractor appears the word 'Owner.' Work was then begun upon the excavation for the house, and the work proceeded in accordance with the contract and the specifications.

During the progress of the work, a number of alterations and additions were made to the plans at the direction of defendants. Fleming was present at the location of the building each day, and according to his evidence acted as 'Overseer,' constantly seeing that the work was being performed according to the plans and specifications. He inspected the materials furnished, instructed the sub-contractors, whose bids had been accepted, in the progress of their work, and employed, discharged and paid all common laborers and carpenters.

Leo Bacigalupo rarely visited the construction premises during working hours, although his wife was a frequent visitor there. Neither of them undertook to instruct the contractors or workmen while they were performing their duties.

During the construction, plaintiff rendered periodic statements to the defendants, and the defendants paid him, as specified in the contract, from time to time, the total sum of $33,125.33, which included compensation for alterations and additions.

Fleming testified that he did not obtain a license or register as a general contractor, because he considered himself to be merely an agent of the defendants and at all times subject to their direction, if they chose to give him any directions. He admitted that he kept the job going and was present at all times as 'Overseer' to see that each subcontractor and laborer did his job properly.

There was considerable contradictory evidence with respect to whether the house was completed in a workmanlike manner and according to the plans and specifications, and whether the defendants were entitled to any damages or refund from the plaintiff. We will not set out that evidence, in view of the conclusion we have reached, and the fact that defendants have assigned no error to the action of the jury in resolving the cross-claim against them; nor will it be necessary to consider the assignments of error relating to the granting and refusal of instructions.

Upon the substantial completion of the house, plaintiff rendered defendants a bill for $3,428, representing 10% of the sum of $34,280, the total cost of the house. Differences having arisen between the parties with respect to the character of the work done, defendants refused to make full payment of the fee demanded and, thereupon, plaintiff instituted this proceeding.

Chapter 7 of Title 54, Code, 1950, designed to protect the public from inexperienced, unscrupulous, irresponsible, and incompetent contractors, is a valid exercise of the police power of the State, and a contract made in violation of its provisions is void and there can be no recovery thereon. Enforcement of the contract is denied the unregistered contractor, not because of the nature of the transaction, but as a penalty for failing to comply with the registration statutes. Massie v. Dudley, 173 Va. 42, 3 S.E.2d 176; Hancock Co. v. Stephens, 177 Va. 349, 14 S.E.2d 332; State Realty Co. v. Wood, 190 Va. 321, 57 S.E.2d 102; Bowen Electric Co. v. Foley, 194 Va. 92, 72 S.E.2d 388; Rohanna v. Vazzana, 196 Va. 549, 84 S.E.2d 440.

So much of Chapter 7 of Title 54 as is pertinent and material here reads as follows:

§ 54-113(2) "General contractor' or 'subcontractor' shall mean any person, firm, association or corporation that for a fixed price, commission, fee or percentage, undertakes to bid upon, or to construct or superintend the construction...

To continue reading

Request your trial
11 cases
  • Sullivan v. Little Hunting Park, Inc
    • United States
    • U.S. Supreme Court
    • 15 Diciembre 1969
    ...if any he has, before it is signed by the trial judge, the object of reasonable notice will have been attained.' Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S.E.2d 321, 326. In that case opposing counsel had seven days to examine the record and make any objections. In the present case he h......
  • Eastern Profit Corporation Limited v. Strategic Vision U.S. LLC
    • United States
    • U.S. District Court — Southern District of New York
    • 22 Junio 2021
    ...not licensed as required by the Code and that the contract was illegal as a matter of law”); see also Massie, 3 S.E.2d at 181; Bacigalupo, 102 S.E.2d at 324-25. argues that the Agreement cannot be void because Strategic did not commit a “willful” violation of the statute. It devoted much ti......
  • Dep't of Prof'l v. Best Buy Stores, LP
    • United States
    • Virginia Court of Appeals
    • 4 Febrero 2014
    ...Mech. & Plumbing, Inc. v. Jones Dev. Corp., 235 Va. 333, 338, 367 S.E.2d 501, 504 (1988)). The Board relies on Bacigalupo v. Fleming, 199 Va. 827, 102 S.E.2d 321 (1958), in support of its contention that Best Buy is a contractor. Bacigalupo, however, is distinguishable from the present case......
  • In re Cty. Green Ltd. Partnership
    • United States
    • U.S. District Court — Western District of Virginia
    • 16 Agosto 1977
    ...being unable to recover, by legal action, either the contract price or on the basis of quantum meruit. See Bacigalupo v. Fleming, 199 Va. 827, 102 S.E.2d 321 (1958); Surf Realty Corporation v. Standing, 195 Va. 431, 78 S.E.2d 901 (1953). The failure of Dr. Messina to license his Corporation......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT