Harris v. Bucher

SHAW, J.

Action to recover a balance alleged to be due from defendant to plaintiff upon an express contract for services rendered by the latter in preparing plans and specifications for and superintending the construction of a building. Judgment went for plaintiff, from which defendant appeals upon a bill of exceptions.

The services rendered pursuant to the contract, as shown by the complaint, were those of an architect. Section 5 of “An act to regulate the practice of architecture, ’ ’ approved March 23,-1901 (Stats. 1901, p. 641), provides that “ ... it shall be unlawful, and it shall be a misdemeanor, . . . for any person to practice architecture without a certificate in this state, or to advertise, or put out any sign or card, or other device which might indicate to the public that he was an architect; provided that nothing in this act shall prevent any person from making plans for his own buildings, nor furnishing plans or other data for buildings of other persons, provided the person so furnishing such plans or data shall fully inform the person for whom such plans or data are furnished, that

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he, the person furnishing such plans, is not a certified architect.”

The complaint, as to which no attack was made in the court below, did not allege any facts showing compliance on the part of plaintiff with the provisions of said statute; nor did the answer contain any allegations negativing such compliance on his part. In the absence of such issue being tendered by the pleadings, no evidence was offered touching the question. Appellant for the first time and in this court now insists that, in the absence of allegations bringing plaintiff within the terms of said provision of law, the complaint fails to state a cause of action. Whether it was necessary to allege and prove that plaintiff was a duly certified architect is the point decisive of the appeal.

While it is generally conceded that noncompliance with such provisions of law will be a bar to recovery for services rendered

(Gardner

v.

Tatum,

81 Cal. 370, [22 Pac. 880]), there seems to be a conflict of authority as to whether plaintiff must allege and, if denied, prove his compliance with the law, or whether the burden rests upon defendant as a matter of defense to show plaintiff’s neglect and failure to comply therewith. Appellant insists the burden rests upon plaintiff, who, in the absence of such fact being established, is not entitled to recover. In support of such contention he cites a number of cases, some of which fully support his position. (See