Moon v. Goldstein

69 Cal.App.2d Supp. 800 (1945) E. R. MOON, Appellant,

v.

SAMUEL H. GOLDSTEIN, Respondent.

California Court of Appeals.

May 21, 1945. Louis Budway for Appellant.

Abe Richman for Respondent.

BISHOP, J.

The cross-complainant obtained a judgment awarding him damages because of the cross-defendant's failure faithfully to perform a contract to plaster thirty houses which the cross-complainant was erecting on lots owned by him. The cross-complainant was not licensed as a contractor, and we have concluded that he was, therefore, engaged in an enterprise prohibited by law and that he was not entitled to the judgment awarded him.

[1] Obviously, in order to make out his case against the cross-defendant, the cross-complainant had to resort to his contract with him; he could not prove that the cross-defendant had damaged him by failing to live up to the obligation of a contract without first proving the contract. If, therefore, the cross-complainant violated some penal statutory provision in entering into the contract with the cross-defendant, making the contract void, he may not recover damages for its breach. This was a conclusion we expressed in a memorandum opinion on a former appeal, citing Berka v. Woodward (1899), 125 Cal. 119, 127 [57 P. 777, 73 Am.St.Rep. 31, 45 L.R.A. 420]; Levinson v. Boas (1907), 150 Cal. 185, 193 [88 P. 825, 11 Ann.Cas. 661, 12 L.R.A.N.S. 575]; Smith v. Bach (1920), 183 Cal. 259, 262 [191 P. 14]; Alvarado v. Davis (1931), 115 Cal.App.Supp. 782 [6 P.2d 121]; Holm v. Bramwell (1937), 20 Cal.App.2d 332, 335 [67 P.2d 114], and we see no reason to doubt its correctness. [2] Moreover, it is the law of the case and its correctness may not now be questioned. (Penziner v. West American Finance Co. (1937), 10 Cal.2d 160, 169 [74 P.2d 252]; Allen v. California Mutual B. & L. Assn. (1943), 22 Cal.2d 474, 481 [139 P.2d 321].)

[3] In People v. Moss (1939), 33 Cal.App.2d Supp. 763 [87 P.2d 932], we had occasion to consider the charge that [69 Cal.App.2d Supp. 802] the defendant, who had bought the materials, hired the labor and enlisted the services of a superintendent, all to the end that a structure might be built on property owned by him, was a contractor within the purview of the Contractors' License Law (Deering's Gen. Laws, 1937, Act 1660). Quoting from section 3 of the statute as it read when the events under review occurred, we concluded that its definition of "contractor" did not include the defendant, and continued with these observations (p. 767): "We do not question the beneficent purpose of this statute, and it should be given an interpretation in furtherance of that purpose. It imposes, however, another limitation upon the right of a citizen to go about his business without governmental interference, and we are of the opinion that such a limitation should not be recognized by the courts, especially where the sanction is possible imprisonment, except as the legislative power clearly, and constitutionally, imposes it ... we conclude that the least that may be said is that it is not clear that the legislature has intended to require an owner of a piece of land to have a contractor's license before he can himself erect a building on it."