Powell v. Berg

PEEK, J.

By their action plaintiffs Powell, Nelson and Tansey sought to recover the reasonable value of their services in the construction of a house and garage upon land owned by defendants Berg and to have the amounts thereof adjudged to be liens against said property. From the judgment which was entered in behalf of plaintiffs Powell and Nelson defendants have appealed. (3 Civ. 7741.) No appeal was taken by plaintiff Tansey from the judgment entered against him. Plaintiff Powell by a second and separate action successfully sought to recover moneys advanced by him in the construction of said dwelling and for the value of the use in such construction work of a truck owned by him. From this judgment defendant likewise has appealed. (3 Civ. 7742.) The foregoing actions were consolidated for trial and appeal and are now before this court upon a single reporter’s transcript.

Following the overruling of defendants’ demurrer in the first action (3 Civ. 7741) an answer was filed denying the material allegations of plaintiffs’ complaint and affirmatively alleging that Powell had represented himself to be a licensed contractor but that he was not so licensed; that he had orally agreed to construct the house at cost and that Berg would sell the same and divide the profits with Powell. In regard to plaintiff Nelson, the answer alleged that he had been fully compensated for his work, and in regard to plaintiff Tansey it was alleged that for a valuable consideration he had released defendants from all claims or demands. Although the answer of defendant in the second action (3 Civ. 7742) does not appear in the record before us, defendants state in their opening brief that an answer was filed denying generally the allegations of the complaint and realleging all of the special defenses set forth in the first action. The consolidated cases proceeded to trial upon the issues so raised. At the conclusion thereof the trial court adopted findings of fact favorable to plaintiffs Powell and Nelson, but found in favor of defendants in regard to plaintiff Tansey.

Appellants’ primary contention is that the judgment as to Powell must be reversed for insufficiency of the evidence to sustain the findings of fact. In particular, it is argued that the evidence establishes as a matter of law that Powell was “a contractor” xvithin the meaning of section 7026 of the

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