Southern Metal Treating Co. v. Goodner, 6 Div. 464

• Court: Supreme Court of Alabama
• Writing for the Court: STAKELY; LIVINGSTON
• Citation: 125 So.2d 268,271 Ala. 510
• Parties: SOUTHERN METAL TREATING CO., Inc., v. C. Vann GOODNER et al.
• Docket Number: 6 Div. 464
• Decision Date: 01 December 1960

Page 268

125 So.2d 268 271 Ala. 510 SOUTHERN METAL TREATING CO., Inc.,
v.
C. Vann GOODNER et al. 6 Div. 464. Supreme Court of Alabama. Dec. 1, 1960.

[271 Ala. 512]

Page 270

J. Reese Murray, John H. Morrow and White, Bradley, Arant, All & Rose, Birmingham, for appellants.

[271 Ala. 514] Sydney Lavender, Gilbert E. Johnson and Deramus, Fitts & Johnston, Birmingham, for appellees.

STAKELY, Justice.

This is an action by C. Vann Goodner, Jr. and Lillian Goodner (appellees), individually and doing business as Goodner Construction Company, to recover from Southern Metal Treating Co., Inc. (appellant), the sum of $4,000 as the reasonable value of work and labor done and materials furnished by plaintiffs to defendant at the latter's request. Originally J. P. Lovoy, President of Southern Metal, was joined as a party defendant. Prior to the submission of the case to the jury, however, Lovoy was stricken as a party.

After the introduction of evidence, plaintiffs' claim was submitted to the jury together with three pleas filed by the defendant. Plea A was a plea of the general issue. Plea B in substance alleged that in constructing or undertaking to construct for defendant a furnace, or in offering to undertake that work and labor, the plaintiffs violated the provisions of Chapter 7, Title 46, Code of 1940, which makes it unlawful to practice engineering in this state without being duly registered to do so, and were therefore prohibited from recovering the value of their services to defendant. Plea C was in substance a plea to recover by way of recoupment, $10,000 as damages allegedly arising out of certain defects in the work and labor performed and the materials furnished by the plaintiffs.

Trial of the action resulted in a verdict for the plaintiffs in the sum of $2,149.23. A subsequent motion for a new trial filed by the defendant was overruled. This appeal followed.

Appellant contends that this case involves the public policy of this state, under the above-mentioned provisions of the Code and the breach of a written contract

Page 271

on the part of the appellees, that as a matter of law the appellees offered 'to practice' engineering and as a matter of fact 'attempted to practice engineering' and in fact failed to properly engineer the furnace. Furthermore according to the appellant, appellee is totally and completely unqualified to do or offer to any engineering work and makes no claim that it is qualified to do or offer to do any engineering work and further according to the appellant the 'structure' deposited by appellee on appellant's premises had thirty or more material defects and, finally, according to the appellant the structure is not the 'engineered furnace' described in the written contract. For example, it is claimed that the width of the furnace structure is too narrow and the length too long, that its arches fell in, its doors would not shut and would freeze and lock in place when appellant attempted to use it and that it has a limited use and a high maintenance cost.

Appellant makes 27 assignments of error, raising a number of questions of law. Appellant insists on assignments 1 and 2, based on the refusal of the trial court to give for appellant the affirmative charge, with or without hypothesis. In support of its position under these assignments, appellant contends that one who practices or offers to practice engineering for another without being properly licensed to do so under Chapter 7, Title 46, Code of 1940, is not entitled to recover for such services.

We agree that this position is correct as a proposition of law. While the particular question as to engineers is a novel one in this state, this court has held unenforceable the contract of a realty broker who is not licensed in accordance with the requirements of Title 46, Chapter 14, Code of 1940, or of a predecessor statute. Faulkner v. Stapleton Insurance & Realty Corp., 266 Ala. 437, 96 So.2d 761; Waldrop v. Langham, 260 Ala. 82, 69 So.2d 440. In Knight v. Watson, 221 Ala. 69, 127 So. 841, 842, this court said:

[271 Ala. 516] 'A statute imposing a license tax as a revenue measure merely, although declaring the doing of business without such license unlawful and affixing a penalty as a method of enforcement, does not render void and unenforceable contracts made without such license. * * *

'But an act under the police power, designed to regulate the business, to protect the public against fraud and imposition, requiring a license as evidence of qualification and fitness, and prohibiting any act of business under penalty, unless such license is first obtained, does render such contracts illegal, void, and unenforceable in actions for the recovery of compensation and the like.'

In our judgment the real estate cases are applicable to the instant situation. The engineer statute here in question is likewise a police measure, by its own terms enacted 'in order to safeguard life, health, and property.' By § 150 of the statute it is made a punishable misdemeanor to 'practice, or offer to practice, the profession of engineering * * * without being registered or exempted in accordance with the provisions of this chapter * * *.' We conclude, therefore, that a contract to engineer or an offer to engineer, made by one not duly registered in accordance with the provisions of the Code, is void and unenforceable.

It follows that recovery for services on any theory of implied contract is equally barred, for such recovery would be no less violative of the public policy expressed in the engineer registration statute.

Our view is in accordance with that of the Supreme Court of Virginia in its recent decision in Clark v. Moore, 196 Va. 878, 86 S.E.2d 37, decided under a licensing statute similar to the Alabama statute. See 53 C.J.S. Licenses § 59(b), pp. 714-715.

The more difficult question remains, however, whether the alleged activities of the appellee constitute the practice of engineering or offer to practice prohibited by the statute.

Page 272

It is disputed that appellee Goodner is not a licensed engineer. It is less clear though whether appellee, who is conceded to be a licensed contractor in this state, has engaged in the proscribed activities. Appellant relies on appellant, wherein it is said: 24, 1957, to appellant, wherein it is said: 'In accordance with our conversation on Tuesday, April 23, we propose to engineer and build one General Purpose Oven Furnace * * *' (emphasis added), and which then sets forth extensive specifications for this furnace. Appellant urges that this letter constitutes, as a matter of law, an offer to engineer, and that appellee's attempts to carry out the terms of the letter constitute an attempt to engineer, as a matter of law, within the meaning of the registration statute and that since appellee's own testimony shows that he was not a registered or qualified engineer, the affirmative charge should have been given in appellant's favor.

Title 46, § 130, Code of 1940, defines 'professional engineer' as follows:

'* * * a person who, by reason of his knowledge of mathematics, the physical sciences, and the principles of engineering, acquired by professional education and practical experience, is qualified to engage in engineering practice as hereinafter defined. The practice of professional engineering within the meaning and intent of this chapter includes any professional service, such as consultation, investigation, evaluation, planning, design, or responsible supervision of construction in connection with any public or private utilities, structures, buildings, machines, equipment, processes, works, or projects, wherein the public welfare, or the safeguarding of life, health or property is concerned or involved when such professional service requires the application of engineering principles and data. * * *.'

In contrast, Title 46, § 65, Code of 1940, defines a general contractor as one who, for [271 Ala. 517] a fee: 'undertakes to construct or superintend the construction of any building, highway, sewer, grading, or any improvement or structure where the cost of the undertaking is ten thousand dollars or more * * *.'

It is by no means certain that the activities of the appellees fall within the statutory definition of engineering, as compared, for example, to that of mere contracting, which appellee Goodner was licensed to do. The fact that the appellee's letter contract of April 24 contains the phrase 'to engineer' is not within itself conclusive, since that phrase is in a letter written by a layman. There was considerable and conflicting evidence, which as we shall later show was properly received as to what the parties intended by the use of this term and what obligations they anticipated it would carry.

It is questionable that appellee ever represented himself to appellant as a qualified engineer. Goodner himself testified that he never offered to perform the professional services, such as designing, consultation, evaluation, and planning, which the statute associates with the practice of engineering, but that he acted throughout only as a general building contractor, which he informed appellant he was. There was evidence tending to show that appellees had been supplied with a set of plans or drawings for the construction of the furnace, which fact, if true, would support the contention that appellee acted only as a contractor. On the other hand, there are indications that these drawings were not actually used in the construction of the furnace.

It was the proper function of the jury to resolve any conflicts in the evidence and to determine any issues of credibility. It was the proper function of the jury to apply the law, as set forth in the statute an explained in an appropriate charge, to the facts of the case as the jury might determine them. Under the circumstances of this case, we cannot say that appellees have, as a matter of law, acted outside the allowable bounds of contracting...