Dorsk v. Spivack

DORAN, J.

The present action was instituted by respondent Dan D. Dorsk to foreclose a mechanic’s lien on appellants’ real estate for services rendered as a building superintendent or supervisor. A second cause of action sought recovery for the agreed and reasonable value of services rendered and materials paid for. A jury trial was had on the issues presented on the second cause of action, resulting in a verdict and judgment for plaintiff-respondent in the sum of $4,072.22. By consent of the parties this judgment was later vacated and a judgment entered in the sum of $4,040.03.

Appellants’ theory, as expressed in answer and brief, is that respondent Dorsk although not licensed as a general contractor under Business and Professions Code, section 7025 et seq., was in effect so acting in the building of appellants’ $80,000 apartment building, rather than acting as a mere building superintendent employed by appellants.

[207]

The record discloses evidence to the effect that for a period of almost 30 years the respondent Dan Dorsk although not a general contractor, had been a licensed plastering contractor; that about May, 1948, Dorsk was invited by appellants to submit a plastering bid on a projected apartment house. In addition to the plastering work, the parties entered into an oral agreement whereby respondent was to act as a building supervisor or superintendent. Dorsk was to receive a flat wage of $3,500, payable after completion of the building at which time appellants would procure a loan on the structure.

According to respondent’s testimony, appellants first offered to pay $100 per week for respondent’s services as superintendent in place of Dorsk’s demand for $200 per week; the parties finally agreed on a flat fee of $3,500 for the job. Dorsk was to take orders from the appellant Spivack; subcontractors dealt directly with and were paid by Spivack; Dorsk saw to it that “everything was done right” by the subcontractors. Respondent testified that “whatever Mr. Spivack wanted me to do, I did.” Spivack visited the job “nearly every day,” sometimes staying for an hour, sometime for four hours, and sometimes remaining all day. Upon completion of the job December 1, 1948, appellants refused to pay the agreed $3,500 or to reimburse Dorsk for advances for occasional labor and miscellaneous supplies.