MacHinery Engineering Co. v. Nickel

ADAMS, P. J.

Machinery Engineering Co., a corporation, brought this action seeking foreclosure of a contractor’s lien against property of defendants, and the recovery of a balance alleged to be due it for the construction of a hay mill for defendants. Defendants filed a cross-complaint, alleging breach of warranty on the part of plaintiff, and also that the work done by it was worthless for the purpose for which it was intended and agreed upon by the parties.

The action was tried by the court sitting without a jury, and eventuated in a judgment for plaintiff for $15,179.59, there having been granted to defendants on their cross-complaint the sum of $15,000 which had been deducted from the amount which plaintiff claimed to be due to it. Defendants filed a motion for a new trial, which was denied. Both parties appealed on an agreed statement of the facts. After the filing of briefs by both parties it became apparent, and it is conceded by plaintiff, that its appeal was taken too late. Accordingly it must be dismissed.

Defendants, referred to hereinafter as appellants, seek reversal of the judgment against them on the ground, first, that plaintiff was not licensed as a contractor as requisite to a recovery by it, under the provisions of chapter 9 of division III of the Business and Professions Code. Other grounds for reversal are asserted but in view of our conclusion on the ground above mentioned, they need not be considered.

It is conceded by plaintiff that, it was not licensed as a contractor. It claims, however, and the trial court held, that under section 7049 of the Business and Professions Code it was not necessary for it to have a license.

Section 7049 reads:

‘ ‘ This chapter does not apply to any construction or operation incidental to the construction and repair of irrigation and drainage ditches of regularly constituted irrigation districts, reclamation districts, or to farming,' dairying, agriculture, viticulture, horticulture, or stock or poultry raising, or

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clearing or other work upon land in rural districts for fire prevention purposes, except when performed by a licensee under this chapter.”