Stephens v. Baker and Baker

[559]

WOOD (Fred B.), J.

The sole question, presented in support of this appeal is the fact that in this action for services rendered and materials furnished as a plaster contractor the complaint said nothing about plaintiff’s being a licensed contractor, though he testified that he was such at all times under the state contractor’s licensing act. (Bus. & Prof. Code, §§ 7000-7145) and no contradictory evidence was offered.

Defendant-appellants invoke section 7031 of the code;

“No person

engaged in the business or acting in the capacity of a contractor,

may bring or maintain any action in any court . . .

for the collection of compensation for the performance of any act or contract . . .

without alleging and proving that he was a duly licensed contractor . .

.” (Emphasis added.)

Defendants interposed no objection to plaintiff’s testimony that he was licensed and at no time did they in the trial court mention or raise any question concerning his failure to include in the complaint an allegation that he was licensed.

Their objection comes too late when thus made for the first time upon appeal. It is like the situation which obtained in

Viglione

v.

City & County of San Francisco,

109 Cal.App.2d 158 [240 P.2d 68]. The city contended that the writ of mandate should not have issued because the complaint failed to allege that there were moneys available to pay the plaintiff’s demand. However, at the trial plaintiff’s counsel announced in his opening statement that payment was being sought out of a certain appropriation and that there was money on hand to pay the claim. “An opportunity was thus afforded appellants to urge the alleged defect in the pleadings. Having declined to take advantage of the opportunity offered they cannot now be heard to complain for the first time on appeal.” (Pp. 160-161.) The objection came too late because the ease was tried and evidence introduced on the theory that this issue was presented by the pleadings. The court said that this “rule is based upon the principle of equitable estoppel. It is unfair for a party to withhold an objection to a pleading founded upon a defect, which, if pointed out in time might have been remedied by amendment, thereby inducing his opponent to rely upon his pleading as sufficient, until it is too late to correct the defect, in order that he may have the advantage of the fatal defect upon appeal.” (P. 160 of 109 Cal.App.2d. See also