Salter v. Kindom Uranium Corp.

• Decision Date: 18 April 1960
• Docket Number: No. 6636,6636
• Parties: Gordon SALTER, Plaintiff-Appellee, v. KINDOM URANIUM CORPORATION, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 375

351 P.2d 375

67 N.M. 34

Gordon SALTER, Plaintiff-Appellee, v. KINDOM URANIUM CORPORATION, Defendant-Appellant.

No. 6636.

Supreme Court of New Mexico.

April 18, 1960.

Noble & Noble, Las Vegas, for appellant.

Roberto L. Armijo, Las Vegas, for appellee.

MOISE, Justice.

This is a suit on a contract to remove and stockpile ore brought by plaintiff-appellee against defendant-appellant.

On January 24, 1957, plaintiff and defendant entered into a written contract whereby plaintiff agreed 'to perform certain mining work on copper siliceous ores' on a certain piece of property near Tecolote, New Mexico, leased by defendant. Plaintiff agreed 'to pay for all labor, work, mining expenses, material, explosives and moving commercial copper ores to specified stockpile location at Tecolote, New Mexico,' and the defendant agreed to reimburse plaintiff therefor 'a maximum of $4.00 (four dollars) per ton of commercial copper ore.'

The contract further provided that payment was to be made as follows: 'Two dollars ($2.00) per ton of commercial copper ore as soon as one hundred (100) tons of commercial ore is stockpiled by the Operator (plaintiff) and that Owner (defendant) agrees to pay the other two dollars cost from mining said ore as soon as full settlement payment is made by the Smelter to the Owner (defendant).'

The contract was subject to termination by either party upon fifteen-day written notice by registered mail. It further provided that not less than 500 tons of commercial copper ore should be mined under its terms.

Under the first count of his complaint, plaintiff alleged that pursuant to the contract he mined and stockpiled 500 tons of 'commercial copper ore,' and had thereby earned $2,000 which defendant had failed and refused to pay excepting the sum of $400, and an additional amount of $170 for which defendant was entitled to credit on account of furnishing by defendant of certain caps, dynamite and fuses, and that a balance of $1,430 was due.

In his second cause of action, plaintiff alleged that he stockpiled 1,200 tons of 'commercial copper ore' for defendant at San Pablo, New Mexico, and that it was agreed between him and defendant that he should be paid therefor at the same rate as provided in the written contract pleaded in his first cause of action, and that defendant owed him $4,800 for this work.

In a third cause of action plaintiff claimed that defendant was indebted to him in the reasonable amount of $200 for certain bull-dozer work, compressor work and blasting not included in the contracts sued on in counts one and two.

By answer, the defendant admitted the contract, but denied that any 'commercial copper ore' was mined or stockpiled; alleged that none of the three causes of action stated facts upon which the relief sought could be granted, and by counterclaim asked judgment for $470.87 assertedly overpaid by defendant to plaintiff.

Upon trial, the court found that plaintiff mined and stockpiled 325.53 tons of 'copper ore' at Tecolote, New Mexico, and 1151 tons of 'copper ore' at San Pablo, New Mexico; that of this only 37.53 tons were shipped. The court further found that plaintiff was entitled to payment for $37.53 tons at the rate of $4 per ton and 1,439 tons at the rate of $2 per ton, less credit for a payment of $390.62 and $170 for fuses, caps and dynamite, or a total of $2,467.50 for which amount judgment was rendered. No findings were made nor was any judgment entered on the third cause of action or on the counterclaim. The defendant has prosecuted this appeal to correct errors claimed to have been made by the court.

The first two points relied on assert that certain of the court's findings are insufficient in law to support the conclusions reached by it or are not supported by substantial evidence. The third point is addressed to the court's action in refusing to dismiss the complaint for failure to state facts upon which the relief sought could be granted, and the fourth ground is for failure to sustain defendant's motion for judgment at the close of plaintiff's case, and is in the nature of a demurrer to the evidence.

We shall examine the third point first because if it is meritorious the appeal will thereby be disposed of and consideration of the other points will not be necessary.

By its answer, defendant alleged failure of the complaint to state facts sufficient to be a basis for the relief sought. This defense was argued to the court--it being pointed out that the contracts alleged were for the performance of certain excavation work and there was no allegation that the plaintiff was licensed as a contractor as required by the laws of New Mexico. Plaintiff admits that he is not so licensed.

Sec. 67-16-14, N.M.S.A.1953, reads in part, as follows:

'No contractor as defined by section 3 (67-16-3) 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.

'The word 'person' as used in this section includes an individual, a firm, co-partnership, corporation, association or other organization.'

Sec. 67-16-1, N.M.S.A.1953, sets forth circumstances when a license is required, as follows:

'It shall be unlawful for any person, firm, copartnership, corporation, association or other organization, or any combination of any thereof, 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 (67-16-1 to 67-16-9, 67-16-12 to 67-16-16). Evidence of the securing of any permit from a governmental agency or the employment of any person on a construction project shall be accepted in any court as prima facie evidence of the existence of a contract.'

A contractor is defined in Sec. 67-16-3, N.M.S.A.1953, as follows:

'A contractor within the meaning of this act is a person, firm, copartnership, corporation, association, or other organization, or any combination of any thereof, 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, or any part thereof; Provided, that the term contractor, as used in this act, shall include subcontractor, but shall not include any one 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. Provided nothing herein shall be construed to apply to any construction or operation incidental to the construction and repair of any highway, to a public utility in the construction, reconstruction, operation or maintenance of its plant other than construction of buildings; or to the drilling, testing, abandoning or other operating of any petroleum or gas well, or to geophysical or similar exploration for oil or gas, and Provided further that no railroad company shall be construed to be a contractor.'

The question presented under this point is whether or not the plaintiff herein was a contractor required to be licensed under the sections quoted above. It is clear that if he was, he cannot maintain this action. We so held in Fischer v. Rakagis, 59 N.M. 463, 286 P.2d 312.

Plaintiff argues that the work here contracted for did not come under the statute because it was not to 'construct, alter, repair, add to or improve any building, excavation, or other structure, project, development or improvement, or any part thereof' since the statute deals with building, improving or...