Weaver v. Haney

• Decision Date: 20 April 1971
• Docket Number: Docket No. 7425,No. 2,2
• Citation: 32 Mich.App. 424,188 N.W.2d 905
• Parties: Ernest F. WEAVER, Plaintiff-Appellee, v. Merle Bennett HANEY and Ruth J. Haney, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 905

188 N.W.2d 905

32 Mich.App. 424

Ernest F. WEAVER, Plaintiff-Appellee, v. Merle Bennett HANEY and Ruth J. Haney, Defendants-Appellants.

Docket No. 7425.

Court of Appeals of Michigan, Division No. 2.

April 20, 1971.

Released for Publication Aug. 17, 1971.

William Patterson, Taylor & Patterson, Lapeer, for defendants-appellants.

Morrice & Lengemann, Imlay City, for plaintiff-appellee.

Before QUINN, P.J., and R. B. BURNS and McGREGOR, JJ.

QUINN, Presiding Judge.

On or about July 25, 1966, plaintiff, an unlicensed residential builder, and defendants entered into a written contract for the construction of a house by plaintiff for defendants on premises owned by them. Claiming an unpaid balance due on this contract, plaintiff filed this action to recover that balance and consequential damages. Defendants filed their answer which included an affirmative defense that the provisions of M.C.L.A. § 338.1516 (Stat.Ann.1970 Cu.Supp. § 18.86(116)) estopped plaintiff from bringing this action. Thereafter defendants moved for accelerated judgment pursuant to GCR 1963, 116.1(5) on the basis of the same statute. This motion was denied after the trial court determined that the statute did not apply on the facts of this case. Defendants appeal from that denial.

The contract of July 25, 1966 called for construction to commence August 1, 1966, with a completion date of January 1, 1967. P.A.1965, No. 383, of which the statute cited above is a part, was signed into law with immediate effect August 18, 1965. However, by P.A.1966, No. 12, immediately effective March 30, 1966, M.C.L.A. § 338.1501 (Stat.Ann.1971 Cum.Supp. § 18.86(101)), the provisions of act 383 pertinent to this decision became effective September 1, 1966.

M.C.L.A. § 338.1501 reads:

'In order to safeguard and protect home owners and persons undertaking to become home owners, it shall be unlawful on and after September 1, 1966, for any person to engage in the business of or to act in the capacity of a residential builder or a residential maintenance and alteration contractor and/or salesman in this state without having a license therefor, unless such person is particularly exempted as provided in this act.'

After providing a criminal penalty for violation of the act, M.C.L.A. § 338.1516 reads:

'No person engaged in the business or acting in the capacity of residential builder and/or residential maintenance and alteration contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any act or contract For which a license is required by this act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract.' (Emphasis supplied.)

The narrow question presented for our decision is whether this statute bars an action by an unlicensed builder on a contract entered into and partly performed prior to the date that the builder had to be licensed but completed thereafter.

Relying on Alexander v. Neal (1961), 364 Mich. 485, 110 N.W.2d 797; Bilt-More Homes, Inc. v. French (1964), 373 Mich. 693, 130 N.W.2d 907; Tracer v. Bushre (1968), 381 Mich. 282, 160 N.W.2d 898 and Chilson v. Clevenger (1968), 12 Mich.App. 56, 162 N.W.2d 303, defendants argue that it is established, 'residential builders cannot either bring or, having brought,...