Fischer v. Rakagis
Decision Date | 29 June 1955 |
Docket Number | No. 5913,5913 |
Citation | 286 P.2d 312,1955 NMSC 57,59 N.M. 463 |
Parties | Karl FISCHER, Plaintiff-Appellant, v. Gust RAKAGIS, Jack Zaris, and Eliza W. Woolford, Defendants-Appellees. |
Court | New Mexico Supreme Court |
Frazier, Cusack & Snead, Roswell, for appellant.
James T. Jennings, Roswell, for appellees.
The question is whether Chapter 197, Laws 1939, as amended, Sec. 67-16-1 et seq., 1953 Comp., denying the contractor redress in the courts of the state, for the collection of compensation due under the contract, unless he alleges and proves that he was duly licensed under the provision of the act at the time the cause of action arose, operates to defeat a claim for compensation under a contract which reads:
'Roswell, New Mexico
'February 26, 1954
'Carl Fisher
'1108 So. Grand
'Box 81
'Roswell, New Mexico
'This will confirm our understanding that you are to build the bar, back bar and do certain carpenter work for us in our place of business located at 100 and 102 South Main in the City of Roswell.
'The bar is to be constructed in accordance with the plan attached hereto and marked 'Exhibit A'. A schedule of the work to be done is attached hereto and marked 'Exhibit B'.
'If the foregoing is your understanding of our agreement, please note your acceptance on a copy hereof and return the same to us.
'Gust Rakagis /s/
'Jack Zaris /s/
'Accepted:
Upon motion the trial court dismissed the complaint, in which the following was charged as grounds for recovery:
'2. That heretofore the Plaintiff was employed by the Defendants, Rakagis and Zaris who are and were co-partners, to do certain work upon the structures at 100 and 102 South Main Street, Roswell, New Mexico, and also to construct for them a bar and various other fixtures to be located in said buildings; that in pursuance of such employment the Plaintiff began the work and furnishing the materials on February 18, 1954, and continuously worked at such employment until April 20, 1954 at which time the work was all completed and the Defendants, Rakagis and Zaris accepted the same, that the work and materials were furnished on a cost basis by Plaintiff plus 10% additional for insurance and other overhead expenses; that after the work was under way the Plaintiff and said Defendants signed a certain agreement dated February 26, 1954, a copy of which is attached hereto, made a part hereof and marked Exhibit 'A', which said agreement was prepared by the attorney for the Defendants, Rakagis and Zaris.
The pertinent provisions of the act are:
* * *'(Emphasis ours.)
'67-16-14. Penalty.--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 * * *.
'No contractor as defined by section 3 * * * 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.'
Since the complaint did not allege that appellant was a licensed contractor, we are of the opinion that the contract falls within the inhibitions of the act and recovery is barred. It is clear that it was the intention of the parties that the fixtures were to be fabricated into the building under the performance contract and for a lump sum. See Porter Lumber Co. v. Wade, 38 N.M. 333, 32 P.2d 819; Fairbanks v. Williams, 25 N.M. 74, 177 P. 745; Patterson v. Chaney, 24 N.M. 156, 173 P. 859, 6 A.L.R. 90. It has been held that where the contracts of artisans, professional or business men are rendered void by statute, or where the statute expressly prohibits recovery for non-compliance therewith, no cause of action arises from such contracts. Desmet v....
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