McBarron v. Kimball

SALSMAN, J.—

Plaintiffs appeal from an adverse judgment in a suit to recover an alleged balance due under a contract for the construction of a house.

In November 1956 George 0. Peshel, hereafter referred to as Peshel, a licensed contractor, entered into a contract with defendant for the construction of a house. A few days later Peshel assigned the contract to plaintiffs, also licensed contractors. Plaintiffs and Peshel jointly performed the contract. At trial, defendant’s defense was that plaintiffs and Peshel had acted as joint venturers and did not possess a license to act as such, as required by Business and Professions Code section 7029, and hence could not maintain this action because of the bar of Business and Professions Code section 7031. The trial court sustained the defense and entered judgment for defendant.

At the time the trial court entered its judgment it was undoubtedly correct. Business and Professions Code section 7031 then read: “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 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.” Num

[220]

erous cases construing this code section supported the trial court’s ruling. (See

Loving & Evans

v.

Blick,

33 Cal.2d 603 [204 P.2d 23];

Lewis & Queen

v.

N. M. Ball Sons,

48 Cal.2d 141 [308 P.2d 713] ;

Precision Fabricators, Inc.

v.

Levant,

182 Cal.App.2d 637 [6 Cal.Rptr. 395].) However, in 1961, after trial and judgment in this case, and while the appeal was pending, the Legislature added the following amendment to Business and Professions Code section 7031: “. . . except that such prohibition shall not apply to contractors who are each individually licensed under this chapter but who fail to comply with Section 7029.” The question to be decided on this appeal is whether the amendment may be applied to this ease. We have concluded that it should apply and that the judgment must be reversed.