Calwood Structures, Inc. v. Herskovic

Opinion

ROTH, P. J.

Appellant entered into an oral contract with respondent for certain home improvements on the latter’s behalf and allegedly com

[521]

pleted the same at a total cost in labor and materials of some $25,000. Respondent reimbursed appellant or paid directly to suppliers about $17,300 of this amount. When appellant sought to recover the balance plus a 10 percent supervisory fee, his original and amended complaints were met with general demurrers sustained by the trial court, ultimately resulting in dismissal of the suit. The basis for the trial court’s action was that the requirement of Business and Professions Code section 7159

1

that such contracts be in a prescribed written form not having been satisfied, the oral agreement was illegal, void and thus unavailable in providing a means of relief. For the reasons hereafter stated, we disagree.

“‘Undoubtedly, the general rule in this state is that when it appears there is a violation of a regulating statute, the prescribed penalty is the equivalent of an express prohibition and a contract made contrary to its terms is void even though the statute does not pronounce the fact. [Citations.] The rule is not without exception, however, and before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition or a penalty, or a penalty only for doing a thing which it forbids, the statute must be examined as a whole, to find out whether the makers meant a contract in contravention of it should be void [citations].’”

(Felix

v.

Zlotoff

(1979) 90 Cal.App.3d 155, 162 [153 Cal.Rptr. 301], citing

Vitek, Inc.

v.

Alvarado Ice Palace, Inc.

(1973) 34 Cal.App.3d 586, 591-592 [110 Cal.Rptr. 86].)