Dias v. Houston

PEEK, J.

Defendant appeals from a judgment awarding plaintiff damages for defendant’s alleged breach of a written contract relating to the remodeling of plaintiff’s premises. The amount of the judgment represented the cost to plaintiff to complete the work, less the balance of the unpaid portion of the contract.

In plaintiff’s original complaint, which was merely for damages for the alleged breach of the contract, no issue was raised concerning the illegality thereof. However, defendant pleaded such illegality in that he was not a licensed contractor by way of an affirmative defense, alleging that plaintiff knew such fact at the time the contract was executed; and that the failure by plaintiff to pay for additional work to the roof of his dwelling prevented defendant’s further performance. By cross-complaint defendant alleged that he had furnished the work and labor at plaintiff’s request and that plaintiff thereby became indebted to him for the reasonable value thereof. Thereafter, by an amended complaint, plaintiff pleaded the defendant’s lack of a contractor’s license; that plaintiff did not discover the fact until after cessation of work by the defendant; that he was unwilling to continue under said contract because of such illegality; that at the time defendant ceased work plaintiff was not in default and was ready and willing to perform the contract until he discovered the fact of illegality.

The testimony shows that plaintiff and defendant entered into a written agreement whereby defendant agreed to do certain remodeling work on a two-story building belonging to the plaintiff. The agreed price was $4,000, of which $1,000 was to be paid on the day after the agreement was made,

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$1,000 upon completion of the downstairs and $2,000 upon completion of the contemplated work. The first payment of $1,000 was made as agreed, but no other payment was made by plaintiff. Thereafter a supplemental agreement was made whereby defendant agreed to do additional work for the sum of $1,600 which was paid upon execution of the agreement. Sometime thereafter a dispute arose between the parties concerning the repair of damage to the roof which plaintiff contended was caused by defendant’s removal of certain supports. Upon plaintiff’s refusal to pay to defendant the amount demanded by him for the repair of the same, the defendant ceased work. On the following day plaintiff discovered that defendant was not a licensed contractor and that the contract was illegal. Subsequently plaintiff employed others and the work was completed. The findings of fact followed the evidence as summarized.