Crawford v. Holcomb, 5659

Decision Date30 October 1953
Docket NumberNo. 5659,5659
Citation262 P.2d 782,57 N.M. 691,1953 NMSC 102
CourtNew Mexico Supreme Court

Douglass K. FitzHugh, Truth or Consequences, for appellant.

Nils T. Kjellstrom, Truth or Consequences, for appellee.

McGHEE, Justice.

Both parties have appealed from the judgment entered in the court below.

On September 26, 1950, the appellant and appellee entered into a contract whereby the appellee agreed to build a house for the former on a lot she owned in an addition to the then City of Hot Springs, New Mexico for the sum of $7,500, the work to begin within seven days from the approval of a loan by the Federal Housing Administration, and to be completed within about 90 days thereafter.

The appellee did not have a contractor's license as required by our Contractors License Act, the material sections of which are Sections 51-1901, 51-1903, 51-1914 and 51-1916, 1941 Comp.

'It shall be unlawful for any person, * * * to engage in the business or act or offer to act in the capacity or purport to have the capacity of contractor within this state without having a license therefor as herein provided, unless such person, firm, copartnership, corporation, association or other organization is particularly exempt as provided in this act. * * *' Section 51-1901.

'A contractor within the meaning of this act is a person, * * * who for either a fixed sum, price, fee, percentage, or other compensation other than wages, undertakes or offers to undertake, or purports to have the capacity to undertake to construct, alter, repair, add to or improve any building, excavation, or other structure, project, development or improvement, other than to personalty, or any part thereof; provided, that the term contractor, as used in this act, shall include subcontractor, but shall not include anyone who merely furnishes materials or supplies without fabricating the same into, or consuming the same in the performance of the work of the contractor as herein defined.' Section 51-1903.

Any person who acts in the capacity of a contractor within the meaning of this act without a license as herein provided, and any person who conspires with another person to violate any of the provisions of this act is guilty of a misdemeanor, and shall, upon conviction thereof, be punished by a fine of not less than one hundred ($100.00) dollars, nor to exceed five hundred ($500.00) dollars, or by imprisonment in the county jail for a term not to exceed six (6) months, or by both such fine and imprisonment in the discretion of the court.

'No contractor as defined by section 3 (Sec. 51-1903) of this act shall act as agent or bring or maintain any action in any court of the state for the collection of compensation for the performance of any act for which a license is required by this act without alleging and proving that such contractor was a duly licensed contractor at the time the alleged cause of action arose. * * *' Section 51-1914.

'Any contractor operating without a license as herein provided shall have no right to file or claim any mechanics lien as now provided by law, but otherwise. Neither this entire act, nor any section thereof is enacted for the purpose of aiding, conflicting with or amending or repealing the present Mechanic's Lien Law * * * of the state of New Mexico, or any part thereof.' Section 51-1916.

The appellee did not secure a license until February 17, 1951, and by its terms it expired on June 30 following, unless renewed. Between the date of the contract and the procuring of the license he did but little construction work on the house beyond putting in a concrete foundation. On the date the contractor's license was issued, a supplemental agreement was entered into between the parties referring to the original contract and granting additional time to the appellee, with a penalty clause of $10 per day for failing to complete the house within the extended time, acts of God alone excepted. Shortly thereafter they entered into another supplemental agreement whereby an additional room was to be added at the stated price of $750. The house was finally completed in August, 1951, but possession was withheld from the owner pending payment of the claimed charges.

On November 9, 1951, the appellant filed suit against the appellee for $10 per day damages for claimed delay in completing the building. To this complaint the appellee filed a denial and a cross-complaint seeking to foreclose a mechanic's lien. Between the filing of the pleadings and the first trial it is said the attorneys in the case discovered the appellee was not a licensed contractor when the agreement was entered into, and it was agreed by the trial judge at the start of the first hearing the pleadings could be amended to plead the appellee was a licensed contractor at the time the cause of action arose.

At the conclusion of the first hearing, which began January 17, 1952, the appellant dismissed her complaint and was given permission to amend her answer to the cross-complaint to ask a set off against any judgment rendered against her of $10 per day for delay and as compensation for the time she had been kept out of possession of the property.

While the case was being held under advisement the appellee entered the house and detached practically all fixtures which could be removed, but he was required to reinstall them and enjoined from committing other depredations against the property pending a final determination of the cause.

It was the contention of the appellant the failure of the appellee to have a license at the time the contract was entered into prevented the foreclosure of the mechanic's lien or any judgment based on the contract for work done; while the appellee contended the making of the February 17, 1951 agreement at a time when he was licensed, and the subsequent agreement for an additional room incorporated the original agreement into these later agreements and removed it from the ban of the contractor's licensing statute.

The trial judge came to the conclusion the appellee could not have foreclosure of his lien, but that he could have recovery on quantum meruit for the value of the materials furnished and labor expended on the house during the time he held a contractor's license, and ordered the parties to appear before him at Socorro, New Mexico, for such a hearing on August 16, 1952. They appeared but only the appellee brought along his witnesses. The appellant objected to such a hearing because of lack of pleadings to make such proof admissible, but this objection was overruled, and the attorneys for each of the parties were told by the judge that they would participate in such hearing and...

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12 cases
  • Martinez v. Research Park, Inc.
    • United States
    • Supreme Court of New Mexico
    • 5 Abril 1965
    ...of action the complaint must allege facts which, if established, would entitle the party to the relief sought. We held in Crawford v. Holcomb, 57 N.M. 691, 262 P.2d 782, that a contractor who was unlicensed when the contract was entered into and a large part of the work performed could not ......
  • Hiram Ricker and Sons v. Students Intern. Meditation Soc., No. 73-1273
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Junio 1974
    ...See Wood v. Black, 60 So.2d 15 (Fla.1952); Gatti v. Highland Park Builders, 27 Cal.2d 687, 166 P.2d 265 (1946); cf. Crawford v. Holcomb, 57 N.M. 691, 262 P.2d 782 (1953) (dictum). This alternative would not necessarily require an explicit exception to the Randall decision because there the ......
  • State ex rel. Gary v. Fireman's Fund Indem. Co.
    • United States
    • Supreme Court of New Mexico
    • 13 Septiembre 1960
    ...on an express contract, and that one could not sue on a contract and recover on quantum meruit. This was reaffirmed in Crawford v. Holcomb, 57 N.M. 691, 262 P.2d 782, and in Chavez v. Potter, 58 N.M. 662, 274 P.2d 308. In Harbison v. Clark, 59 N.M. 332, 337, 284 P.2d 219, we stated that if ......
  • Chavez v. Potter
    • United States
    • Supreme Court of New Mexico
    • 6 Agosto 1954
    ...that one cannot sue on express contract and recover on quantum meruit, and we are still of the same opinion. See, also, Crawford v. Holcomb, 57 N.M. 691, 262 P.2d 782. It is true that plaintiff, in his prayer, asks in the alternative for a money judgment upon a quantum meruit, but under cod......
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