Marshall v. Von Zumwalt

• Decision Date: 26 October 1953
• Citation: Marshall v. Von Zumwalt, 120 Cal.App.2d 807, 262 P.2d 363 (Cal. App. 1953)
• Court: California Court of Appeals
• Parties: MARSHALL v. VON ZUMWALT et al. Civ. 19574.

Page 363

262 P.2d 363

120 Cal.App.2d 807

MARSHALL v.VON ZUMWALT et al.

Civ. 19574.

District Court of Appeal, Second District, Division 2, California.

Oct. 26, 1953.

Sidney L. Gelber, San Fernando, for appellant.

Nathan Kates & Gerald B. Tannen, San Fernando, for respondents.

McCOMB, Justice.

From a judgment in favor of defendants after trial before the court without a jury in an action to recover for (1) $1,400, loaned to defendants, and (2) $100 for the reasonable value of work, labor and services performed for defendantWilliam Von Zumwalt, plaintiff appeals.

Viewing the testimony most favorable to defendants(respondents) the record discloses that defendantVon Zumwalt agreed to construct a house for plaintiff and plaintiff's wife; plaintiff advanced to defendant money to purchase two lots, one for plaintiff's home and one for defendant's home; plaintiff further worked on his own home in accordance with an agreement whereby defendant would not pay him with cash, but would credit him with the value of his work toward the price of his home or extras ordered.

Subsequently plaintiff's home was constructed by defendant and plaintiff was charged with extras in the sum of $2,113.09, against which was credited the sum of $1,400 and $100.

The trial court found that plaintiff did lend to defendant the sum of $1,400 and plaintiff performed work, labor and services for defendant in the reasonable value of $100, and further found that such sums were paid by defendant's crediting plaintiff with such amounts against extras ordered by plaintiff during construction of his home.

When plaintiff rested, the court, on defendant's motion, dismissed defendant's cross-complaint predicated upon the contract to build a house for plaintiff.

Thereafter defendant introduced testimony showing that he had credited plaintiff with $1,500 against a sum in excess thereof which plaintiff owed defendant for constructing a house for him.

Question: First: Did the trial court err in admitting in evidence testimony concerning a building contract, under the terms of which plaintiff owed defendant in excess of $1,500 and against which defendant had credited plaintiff with the sum of $1,500 alleged to be due plaintiff in the complaint in the present action, for the reason there was no evidence that defendant was a duly licensed contractor?

No. Section 7031 of the Business and Professions Code of California reads as follows: 'No person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action in any court of this State for the collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging and proving that he was a duly licensed contractor at all times during the performance of such act or contract.'(Italics added.)

It is to be noted that the statue merely prohibits a contractor from maintaining or bringing an action upon a contract which he has entered into pertaining to the contracting business.It does not prohibit him when sued from setting up as a defense any sums which may be equitably due him from the plaintiff upon such illegal contract.Such a contract is not malum in se but merely malum prohibitum.

The applicable rule is thus stated in 12 American Jurisprudence (1938), Contracts, sec. 158, p. 654,...