Coe v. McElligott
| Decision Date | 08 July 1987 |
| Parties | Ned COE, dba Coe Electric, Respondent, v. Joseph P. McELLIGOTT and Jeri D. McElligott, husband and wife, Appellants, and Bank of Eastern Oregon, a corporation, Defendant. 7386; CA A38664. |
| Court | Oregon Court of Appeals |
William J. Kuhn, Heppner, argued the cause for appellants. With him on the briefs was Kuhn and Spicer, Heppner.
William A. Galbreath, Milton-Freewater, argued the cause and filed the brief for respondent.
Before WARDEN, P.J., and JOSEPH, C.J., * and VAN HOOMISSEN, J WARDEN, Presiding Judge.
Defendants McElligott appeal from a judgment foreclosing plaintiff's construction lien. They contend that the trial court erred in failing to grant their motion for a directed verdict. 1 We reverse.
In 1982, the McElligotts purchased the unfinished house, which is the subject of plaintiff's construction lien, from defendant bank, which had previously obtained it at a sheriff's sale to satisfy its judgment against the original builder. According to their testimony, before the purchase Mr. McElligott called plaintiff, the electrical contractor who had installed some of the wiring for the original builder, to get an estimate of the cost of completing the wiring. Plaintiff made an oral estimate of $4,500-$5,500. After purchasing the house, McElligott contacted another electrician about finishing the work and was advised to contact the electrician who had started the job. McElligott then met with plaintiff and orally contracted for the completion of the wiring. There were substantial differences between plaintiff's and McElligott's testimony as to the agreed consideration. McElligott testified that he had requested an estimate of the cost to finish the house for budgeting purposes, that plaintiff had replied that he would do the job for no less than $2,500 and that, when McElligott asked why the figure was less than plaintiff's earlier estimate, plaintiff replied that there were more materials on site than he had previously thought. Plaintiff testified that he never gave McElligott a price quote and that he offered no explanation of any sort about the price of the job. The work on the house began in December, 1982, and continued through February, 1983. Defendants received their first bill at the end of January, 1983, for $7,800 for December material and services. McElligott met with plaintiff in February, 1983, hoping to have the price of the job reduced and to settle, and plaintiff agreed to reduce the charge for materials by five percent. Plaintiff would not give McElligott a breakdown of time and materials. Defendants gave plaintiff a check for $7,000 at that time but made no other payments. Plaintiff's final bill was for $12,765.63.
Plaintiff brought this foreclosure action. Defendants asserted as an affirmative defense that plaintiff was barred from the Oregon courts, because he was not registered with the Builders Board, and at trial they moved to dismiss on the basis of that defense. The motion was denied. The court granted foreclosure of the construction lien, subject to the mortgage of the bank. 2 Defendants appeal, contending that the court erred in denying their motion.
ORS 701.065 3 provides:
It is undisputed that plaintiff was not registered with the Builders Board at the time he entered into the contract with defendants or at any time during which he performed work for defendants. Therefore, he is prohibited from bringing an action for compensation for the performance of work, unless the court finds that prohibition would result in a substantial injustice to him under ORS 701.065(2).
A representative of the Builders Board explained that subsection to...
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Splinters, Inc. v. Andersen/Weitz
...is unjust or unfair requires a subjective value judgment by the court making the decision. For instance, in Coe v. McElligott, 86 Or.App. 272, 275-76, 739 P.2d 57 (1987), we addressed an earlier version of ORS 701.065(2) (1999), "A representative of the Builders Board [now the CCB] explaine......