Skipper v. Gilbert J. Martin Const. Co.
| Decision Date | 12 December 1957 |
| Citation | 156 Cal.App.2d 82,318 P.2d 732 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eddie SKIPPER, Appellant, v. GILBERT J. MARTIN CONSTRUCTION COMPANY, a California Corporation; Vista Land Company, a Corporation, Respondents. Civ. 5573. |
Casey & Kerrigan and Richard J. Weller, San Bernardino, for appellant.
Pines & Walsh, Milnor E. Gleaves, Adele Walsh, Los Angeles, for respondents.
This is an action for foreclosure of a mechanic's lien and for money alleged to be due under a contract. The demurrer to plaintiff's second amended complaint was sustained without leave to amend and plaintiff appeals from the judgment of dismissal thereupon entered.
It is alleged in the second amended complaint that the defendants, owners of certain real property in San Bernardino county, were engaged as joint venturers in the construction of sixty houses on said property; that on or about November 30, 1955, plaintiff and defendants entered into the following written agreement:
'This agreement, made this day, November 30, 1955, between Gilbert J. Martin Construction Co. and Eddie Skipper for the purpose of framing 60 houses at Vista Manor to wit:
'That Gilbert J. Martin Construction Co. agrees to furnish payoll, tools and all allied materials and supplies for the purpose of framing said houses.
'Eddie Skipper agrees to furnish all labor and himself as general foreman for the purpose of framing said houses at the basic price of 38cents per square foot per house.
'Gilbert J. Martin Construction Co.
'By /s/ G. C. McDaniel
'Eddie Skipper
'/s/ Eddie Skipper.'
Plaintiff further alleged that he has fully kept and performed said agreement; that pursuant to the terms thereof the sum of $32,909.52 became due and owing for work performed pursuant to said contract; that defendants paid $27,668.18 on said contract, leaving a balance of $5,241.34 unpaid; that in addition to the framing of said houses, the plaintiff also furnised materials and labor representing extra work and extra materials in said construction, having a value of $1,842.50, in addition to the contract price, which said sum defendants agreed to pay put which is unpaid. Plaintiff also alleged that his only duty under said agreement was to furnish labor and himself as general foreman for the purpose of framing said houses; that the defendants had and exercised active control of all labor and all employees furnished by plaintiff; that plaintiff, acting in his capacity as general foreman, was required to accept orders and direction from the officers of defendant corporations and they actually exercised exclusive control over the laborers secured by plaintiff in framing said houses and actually hired said laborers; that defendants gave directions to plaintiff and said laborers in the manner in which said work was to be performed and paid all wages to said laborers; that defendants paid all withholding taxes, social security payments, unemployment insurance payments, and workmen's compensation covering said laborers; that defendants orally requested plaintiff to obtain the extra materials and labor furnished to defendants.
The mechanic's lien filed by plaintiff recites, inter alia, that 'Said lien is claimed for labor and rentals in constructing the buildings on the above described lots furnished at the request of Gilbert J. Martin Construction Company in accordance with an agreement dated November 30, 1955, for and used in the construction or work of improvement of said buildings between the 25th day of November, 1956 and the 24th day of January, 1956.'
There was no allegation in the complaint that plaintiff was, at the time the work was performed and materials furnished under the contract, a licensed contractor, and it was stipulated that plaintiff did not hold any such license.
Appellant's principal contention is that he was an employee and not a contractor as defined in section 7026 of the Business and Professions Code and therefore was not required to allege and prove he was a licensed contractor.
Section 7026 of said code defines a contractor as 'any person, except an owner * * *, who in any capacity other than as the employee of another with wages as the sole compensation, undertakes to * * * or does himself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or...
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...no specific cases for his proposition, but a careful reading of his brief indicates he might be relying on Skipper v. Gilbert J. Martin Constr. Co., 156 Cal.App.2d 82, 318 P.2d 732. However, that case deals with an individual who did Not come within the exception for an employee on wages. (......
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