Nickels v. Walker

• Decision Date: 20 July 1964
• Docket Number: No. 7462,7462
• Parties: Jerry D. NICKELS, d/b/a Jerry D. Nickels, General Contractor, Plaintiff-Appellee, v. Charles H. WALKER and Doris G. Walker, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 679

395 P.2d 679

74 N.M. 545

Jerry D. NICKELS, d/b/a Jerry D. Nickels, General

Contractor, Plaintiff-Appellee, v. Charles H. WALKER and Doris G. Walker, Defendants-Appellants.

No. 7462.

Supreme Court of New Mexico.

July 20, 1964.

Rehearings Denied Aug. 25 and Oct. 8, 1964.

Rodey, Dickason, Sloan, Akin & Robb, Joseph J. Mullins, Albuquerque, for appellants.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellee.

COMPTON, Chief Justice.

The plaintiff sought to recover from the defendants $10,028.35, the balance allegedly due for the construction of a residence for the defendants, $643.11 for care and custodial expenses, attorney's fees, costs, and foreclosure of a mechanic's lien. From a judgment granting the plaintiff the relief prayed for, the defendants appeal.

The complaint alleged a contract between the parties dated May 25, 1961, for the construction of a residence; the completion of the construction by the plaintiff; the failure of the defendants to pay the amounts due; and the filing of a mechanic's lien against the property. The complaint, however, did not allege that the plaintiff was a duly licensed contractor.

The answer of the defendants admitted the contract but denied the completion of the construction and the propriety of filing the lien. In addition, they counterclaimed for specific performance of the contract and cancellation of the lien or, in the alternative, for damages caused by the plaintiff's failure to complete the residence on the date specified in the contract and to perform according to the plans and specifications. Thereafter, the defendants moved to dismiss the complaint on the ground that the plaintiff, operating as a partnership, was not a licensed contractor and, therefore, as a matter of law, was neither entitled to maintain the action nor to claim a lien against the property. The motion was denied.

The cause was tried to the court. The testimony of Jerry D. Nickels disclosed that he had a partner, one Clinton Smith, at the time the contract in question was entered into and that the partnership was operating under the name of Jerry D. Nickels d/b/a Jerry D. Nickels, General Contractor. After the admission into evidence of a copy of the contract and the architect's certificate of completion, dated December 15, 1961, the trial was recessed, the court, in effect, ruling that dur to the failure of the defendants to allege, or amend their pleadings to allege, that the architect's certificate of completion was procured by fraud, bad faith or the exercise of bad judgment, the defense of failure to complete the contract was not properly raised and, consequently, the architect's certificate, provided for in the contract, was conclusive on the issue of completion. Thereafter, based upon its findings of fact and conclusions of law, the court entered judgment for the plaintiff.

Several points are relied upon by the appellants as grounds for reversal but we believe the crucial question raised is whether the appellee partnership, which was not licensed as such by the Contractor's License Board pursuant to Sec. 67-16-1 et seq. N.M.S.A.1953 Comp., may being or maintain this action or claim a mechanic's lien.

The court found that at all times material hereto Jerry D. Nickels was a duly licensed contractor. The appellants challenge any proof of this fact. The court found further that the partnership between Jerry D. Nickels and Clinton Smith functioned under the contractor's license held by Jerry D. Nickels and at all times complied with the rules and regulations of the New Mexico Contractor's License Board. This latter finding is based, at least in part, upon the court's consideration of an affidavit by counsel for the appellee, and the deposition of a member of the Contractor's License Board, both to the effect that the member of that Board advised counsel in a telephone conversation that since the function of Clinton Smith in the partnership would be limited to furnishing clerical and financial assistance, the partnership could operate under the license issued to Nickels and no new license was required. Appellants take the position that the documents just referred to were erroneously considered by the trial court as they were neither offered nor admitted into evidence at the trial, and that they form part of a supplemental transcript which is not properly before this court.

In the view we take of the case, a determination of these questions is not necessary. Assuming, without deciding, that Jerry D. Nickels was at all times a duly licensed contractor, and that the court properly considered the documents included in the supplemental transcript, nevertheless, the findings of fact of the trial court do not support its conclusions of law that the admission of a person as a partner with a licensed contractor does not require the registration of that partnership or the issuance of a new contractor's license to the partnership.

The Contractor's License Law is contained in Secs. 67-16-1 to 67-16-20, inclusive, supra, and is comprehensive. A 'contractor' is defined as 'a person, firm, copartnership, corporation, association, or other...