Muth v. Leineke

Opinion

BRAY, J.

*

Judgment roll appeal by plaintiff from judgment in favor of defendants.

Questions Presented

1. The undisclosed agent’s lack of license, said license required by Business and Professions Code, section 7031, bars recovery by plaintiff, an admitted undisclosed principal.

2. Plaintiff may not recover for materials.

Record

In October 1966, Eugene Niccum, doing business as Tru-Line Masonry, without a contractor’s license, orally agreed to do certain masonry work for defendants. Unknown to defendants, at the time of the making, performance and completion of the contract, Niccum was the undisclosed agent of plaintiff, plaintiff being an admitted undisclosed principal. Plaintiff paid $6,250 for the labor and materials furnished by Niccum to defendants and then brought this action to recover such amounts from defendants. They did not discover that plaintiff was the principal until service of process in this action. At all times, plaintiff was a duly licensed masonry contractor. On the ground that Niccum did not have the contractor’s license required by Business and Professions Code, section 7031, the trial court refused plaintiff recovery. Plaintiff appeals.

1. The undisclosed agent’s lack of license bars recovery.

Section 7028 of the Business and Professions Code, provides, in pertinent part: “It is a misdemeanor for any person to engage in the business or act in the capacity of a contractor within this state without having a license therefor. . . .”

Section 7031 of the Business and Professions Code, provides, in pertinent part: “No person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action in any court of this state for the

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collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging and proving that he was a duly licensed contractor at all times during the performance of such act or contract.”