Cargill v. Achziger

SCHOTTKY, J.

This is an appeal from a judgment foreclosing a mechanic’s lien.

On August 17, 1956, Fred M. Cargill filed a claim of lien on real property owned by Eddie Ivan Achziger and Victor Achziger for labor and materials furnished to the Achzigers and used in grading and paving a parking lot and driveway on the real property, and in oiling a driveway, hauling trash and blading grass. Cargill then brought this action to recover $1,582.68 for the materials furnished and $1,472.09 for the value of labor and equipment furnished, and asked that the sums be declared a lien on the property and that the lien on the property be foreclosed by the sheriff.

Cargill was in the business of selling building materials and of operating hauling and earth moving equipment. In March, 1956, Eddie Ivan Achziger asked Cargill to “hard top” his property. After discussing the job Achziger asked what the price would be. Cargill testified that he told Achziger that he would not give him a price on an overall job because he was not a contractor and he would have to take it on a labor and materials basis. There was no actual discussion as to an

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hourly wage for labor as Cargill had done work for Achziger before. Cargill told Achziger that the job would run about $2,500, but it would depend on the amount of materials used. Cargill commenced work in April, 1956. He had been told what to do, and he made progress reports to Eddie Achziger, who lived in San Francisco, by telephone. Eddie Achziger, after the first discussion, never saw Cargill during the period the work was in progress. Cargill paid the men he furnished, carried workmen’s compensation insurance, purchased all the materials used in his own name and furnished the equipment used. Cargill did not bill the Achzigers until the job was completed. He testified that it was his understanding that the Achzigers could have terminated his employment at will. The Achzigers testified that Cargill agreed to do the job for $2,500, and that it was not a mere agreement to furnish labor and materials. The Achzigers assert that Cargill was in complete control of the job. The trial court awarded judgment in favor of Cargill and this appeal followed.

Appellants first contend that respondent was not entitled to bring the action because he was not a duly licensed contractor. (Bus. & Prof. Code, § 7031.) The question whether Cargill was functioning as an unlicensed contractor or merely as an employee hired by appellants to supervise the construction is essentially a question of fact.