Tucker v. Walker
| Decision Date | 13 February 1975 |
| Citation | 308 So.2d 245,293 Ala. 589 |
| Parties | John H. TUCKER v. Cecil WALKER and Ralph Walker, etc. SC 1015. |
| Court | Alabama Supreme Court |
Dieter J. Schrader, Huntsville, for appellant.
Finis E. St. John, III, Cullman, for appellees.
On this appeal by plaintiff Tucker from a summary judgment for defendant Walker, we reverse and remand.
Tucker's complaint seeks $100,000 damages for the alleged breach by the Walkers of a contract whereby Tucker was to install kitchen equipment, landscape, and construct parking facilities at the Trussville Convalescent Home. 1 To the complaint the Walkers interposed the affirmative defense of illegal contract, alleging that the contract sued on was for construction work 'costing' more than $20,000 and that Tucker was not, at the time of the making of the contract, licensed in the State of Alabama as a general contractor as required by Tit. 46, §§ 65--82, Code of Alabama 1940 (Recompiled 1958).
It appears from the pleadings that on September 30, 1968, Tucker and the Walkers executed a written contract by which they agreed: 'that the sum to construct . . . Trussville Convalescent Nursing Home will be $190,000'; that the 'Home' was to be construed in accordance with a contract executed that same day between the Walkers and Trussville Convalescent Home, Inc. except that Tucker would install kitchen equipment, landscape, and construct parking facilities. The agreement between Tucker and the Walkers does not state the consideration to be received by Tucker, nor does it appear to be the entire agreement between the parties. The contract between the Walkers and Trussville Convalescent Home, Inc. calls for $290,000 to be paid to the Walkers upon completion of the nursing home.
The difference between the $290,000 recited in the Walkers' contract with Trussville Convalescent Home, Inc. and the $190,000 recited in Tucker's agreement with the Walkers is, according to Tucker, the consideration which the Walkers orally agreed Tucker was to receive for furnishing kitchen equipment, landscaping, constructing parking facilities, and securing financing.
The Walkers moved for summary judgment pursuant to Rule 56, Alabama Rules of Civil Procedure, accompanying their motion with an affidavit by Cecil D. Walker in which he states that the suit which Tucker filed claimed $100,000, based on a claim for work done or to be done by plaintiff on the construction of the Convalescent Home and that neither plaintiff nor defendants were licensed contractors. Tucker opposed the motion with his own affidavit, the affidavit of his attorney, the Walkers' answers to interrogatories, and portions of the deposition of Cecil D. Walker.
Tucker states in his affidavit that the 'cost' to him of the 'construction' work was less than $20,000. The Walkers' answers to interrogatories and portions of Cecil Walker's deposition offered by Tucker permit the inference that, in addition to the other work Tucker was to perform, he was also to procure permanent mortgage financing for the completed nursing home as part of the consideration for the $100,000 he was to receive from the Walkers.'
After considering the pleadings and matters outside the pleadings offered in support of, and in opposition to, the motion for summary judgment, the trial judge concluded that there was no genuine issue as to any material fact and that the Walkers were entitled to judgment as a matter of law. We cannot agree with this conclusion.
The defendants' motion for summary judgment is based on our case of Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969), in which this Court held that a contract for the construction of a building 'costing' more than $20,000, between a landowner and a 'contractor,' not licensed pursuant to Tit. 46, §§ 65--82, Code of Alabama 1940 (Recompiled 1958), is contrary to public policy and unenforceable by the unlicensed contractor.
This Court's holding in Cooper is based on the well-established rule that if the purpose of a licensing statute is the regulation of the business licensed and not merely the collection of revenue, a person not licensed cannot enforce a contract for services rendered within the scope of the regulated business. See Knight v. Watson, 221 Ala. 69, 127 So. 841 (1930); Southern Metal Treating Co., Inc. v....
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