V. L. Hash and Virginia Hash, Phoenix, for appellant.
Carl W. Divelbiss, Phoenix, for appellee.
Faires, Superior Court Judge. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur. Stanford, J., having disqualified himself, the Honorable C. C. Faires, Judge of the Superior Court of Gila County, was called to sit in his stead.
Faires, Superior Court
[72 Ariz. 168] This is an appeal from a summary judgment in favor of the defendant-appellee and against the plaintiff-appellant entered upon the motion of the former in an action to recover an alleged balance due the plaintiff on a verbal contract for the erection of buildings for the defendant by the plaintiff on a cost-plus basis. There is but one assignment of error with its subdivisions, to wit: "That the court erred in granting a summary judgment upon the motion of defendant, for the reason that many issues of fact were to be tried."
The complaint alleges that the plaintiff engaged to furnish material and perform the labor. Defendant agreed to pay for such material and labor, and in addition, agreed to pay to plaintiff an additional 15 per cent of the amount expended for material and labor as compensation for the superintendency and construction of said buildings; that building was commenced on February 4, 1946, and completed on May 26, 1947; that under the terms of the contract the defendant became indebted to plaintiff in the sum of $ 18,443.63; that plaintiff in payment thereon had received the sum of $ 11,634.10; and that defendant owed a balance to plaintiff of $ 6,814.53.
The defendant in her answer generally denies the material allegations of plaintiff's complaint but admits the terms of employment under the contract except that she agreed to pay only ten per cent of the total amount expended for material and labor as compensation to plaintiff W. D. Northen. The answer further denies that plaintiff is entitled to maintain said action by reason of the fact that his license to contract expired June 30, 1946.
The defendant moved for summary judgment in her favor pursuant to the provisions of sections 21-1210 to 1216, A.C.A. 1939, Rules Civ.Proc., Rule 56, upon the grounds that the plaintiff could not maintain the action because he was not a licensed contractor when the alleged cause of action arose and because, under the facts as stated in the pleadings and affidavits, performance of the contract was not completed by the plaintiff. Said motion was supported by the affidavit of defendant, substantially reiterating matters alleged in her answer, and the affidavit of Morgan G. Pratt, the Registrar of Contractors, stating that the license of plaintiff W. D. Northen as a contractor expired on June 30, 1946, and that no license had been issued to him thereafter. A counter-affidavit was filed by plaintiff reaffirming substantially [72 Ariz. 169] the allegations of his complaint, but admitting the expiration of his contractor's license and his failure to apply for any renewal thereof.
It may be fairly said that the record discloses, without dispute, from the pleadings and affidavits that plaintiff on or about February 4, 1946, entered into a verbal contract with the defendant for the erection of a building or buildings by the plaintiff for the defendant on a cost-plus basis; that at the time of the making of the contract the plaintiff was a duly licensed contractor, such license being issued to him by the Registrar of Contractors of the
State of Arizona on June 25, 1945, and that it expired on June 30, 1946, and was not renewed and no application for its renewal was ever made by the plaintiff; that no contractor's license was issued to the plaintiff subsequent to the expiration of said license, and the plaintiff was not and has not been a licensed contractor at any time since June 30, 1946; that the plaintiff commenced work under said contract in March or April, 1946, and continued such work intermittently until an undetermined date in 1947, March 22, according to the defendant, May 26, according to the plaintiff; that said contract did not provide in terms when payment should be made thereunder, or whether payment should be made as the work progressed or only upon final completion thereof; that the work covered by the contract was never completed by the plaintiff but was taken over and completed by the defendant; that all money due plaintiff for work done by him under the contract up to and before June 30, 1946, was paid to him by the ...