Cargill v. Achziger

• Decision Date: 17 November 1958
• Citation: 165 Cal.App.2d 220,331 P.2d 774
• Court: California Court of Appeals Court of Appeals
• Parties: Fred M. CARGILL, Plaintiff and Respondent, v. Eddie Evan ACHZIGER, Victor Achziger, and Achziger & Achziger, a copartnership consisting of Eddie Ivan Achziger and Victor Achziger, Defendants and Appellants. Civ. 9424.

Page 774

331 P.2d 774

165 Cal.App.2d 220

Fred M. CARGILL, Plaintiff and Respondent, v. Eddie Evan ACHZIGER, Victor Achziger, and Achziger & Achziger, a copartnership consisting of Eddie Ivan Achziger and Victor Achziger, Defendants and Appellants.

Civ. 9424.

District Court of Appeal, Third District, California.

Nov. 17, 1958.

Rehearing Denied Dec. 8, 1958.

Hearing Denied Jan. 14, 1959.

Allan L. Sapiro, San Francisco, for appellants.

G. Douglas Thompson, Vacaville, for respondent.

SCHOTTKY, Justice.

This is an appeal from a judgment foreclosing a mechanic's lien.

On August 17, 1956, Fred M. Cargill filed a claim of lien on real property owned by Eddie Ivan Achziger and Victor Achziger for labor and materials furnished to the Achzigers and used in grading and paving a parking lot and driveway on the real property, and in oiling a driveway, hauling trash and blading grass. Cargill then brought this action to recover $1,582.68 for the materials furnished and $1,472.09 for the value of labor and equipment furnished, and asked that the sums be declared a lien on the property and that the lien on the property be foreclosed by the sheriff.

Cargill was in the business of selling building materials and of operating hauling and earth moving equipment. In March, 1956, Eddie Ivan Achziger asked Cargill to 'hard top' his property. After discussing the job Achziger asked what the price would be. Cargill testified that he told Achziger that he would not give him a price on an overall job because he was not a contractor and he would have to take it on a labor and materials basis. There was no actual discussion as to an hourly wage for labor as Cargill had done work for Achziger before. Cargill told Achziger that the job would run about $2,500, but it would depend on the amount of materials used. Cargill commenced work in April, 1956. He had been told what to do, and he made progress reports to Eddie Achziger, who lived in San Francisco, by telephone. Eddie Achziger, after the first discussion, never saw Cargill during the period the work was in progress. Cargill paid the men he furnished, carried workmen's compensation insurance, purchased all the materials used in his own name and furnished the equipment used. Cargill did not bill the Achzigers until the job was completed. He testified that it was his understanding that the Achzigers could have terminated his employment at will. The Achzigers testified that Cargill agreed to do the job for $2,500, and that it was not a mere agreement to furnish labor and materials. The Achzigers assert that Cargill was in complete control of the job. The trial court awarded judgment in favor of Cargill and this appeal followed.

Appellants first contend that respondent was not entitled to bring the action because he was not a duly licensed contractor. Bus. & Prof.Code, sec. 7031. The question whether Cargill was functioning as an unlicensed contractor or merely as an employee hired by appellants to supervise the construction is essentially a question of fact. Denton v. Wiese, 144 Cal.App.2d 175, 300 P.2d 746; Martin v. Henderson, 124 Cal.App.2d 602, 269 P.2d 117. In the instant case there is evidence that respondent did not hold himself out as a contractor. There is some evidence, though contradicted, that respondent communicated with Eddie Achziger as the work progressed; that Victor Achziger made suggestions as to the work to be done and increased the amount of work to be done. There is evidence in the record that respondent charged sales taxes for the materials furnished. This is some evidence tending to show that respondent was not acting in the capacity of a contractor, and that he would not be precluded by said Section 7031 of the Business and Professional Code from recovering for the work done and materials furnished.

Appellants also contend that Cargill was not within the exceptions to the chapter requiring licensing of contractors (Sec. 7052 applying to materialmen and Sec. 7053 applying to employees), and therefore he must have been within the scope of the chapter and would have had to be licensed in order to recover.

Section 7052 states: 'Materialmen. This chapter does not apply to any person who only furnishes materials or supplies without fabricating them into, or consuming them in the performance of, the work of the contractor.'

Section 7053 states: 'Employees. This chapter does not apply to any person who engages in the activities herein regulated, as an employee with wages as his sole compensation.'

We do not agree with this contention of appellants. There is nothing in the chapter requiring the licensing of contractors which precludes one from furnishing materials as a supplier and then installing them as an employee. The court in the instant case found that appellant Eddie Evan Achziger agreed to pay respondent the reasonable value of labor, materials and equipment, and that Achziger and respondent 'did not enter into a contract for the furnishing by plaintiff of such labor, equipment, and materials at a fixed price', and 'that in the furnishing of...