[84 Ariz. 309] Alex B. Baker and Cunningham, Carson & Messinger, Phoenix, by William H. Rehnquist, Phoenix, for appellants.
Pickrell, Hunter, Bartlett & Penn, and Ross F. Jones, Phoenix, for appellees.
UDALL, Chief Justice.
This is an appeal by defendants Ott Dixon and wife from a judgment in the net amount of $11,447.54, which was entered for plaintiff-appellee Ralph B. Feffer, Sr., et al., based upon a jury verdict on [84 Ariz. 310] plaintiffs' third amended complaint less the amount of the verdict on defendants' counterclaim.
The defendants were the owners of a large tract of farming land on the Hassayampa in western Maricopa County and were desirous of obtaining grain storage facilities, primarily to store their own grain crops at least part of which would be used in their cattle feeding operations. It was contemplated that if they had surplus storage space in any given year it might be used commercially for the storage of grains grown by other farmers in the area.
Plaintiffs were the local distributors and sellers of a prefabricated trussless steel building that required no braces or support. This building, a patented product manufactured by a Chicago concern, was called the 'Wonder Building'. In February 1954 the parties entered into a written agreement (obviously drawn by laymen) whereby defendants agreed to purchase from the plaintiffs such a building, the total erected cost of which was agreed upon as $18,684.42. A down payment of 20% thereof was made by defendants to plaintiffs on February 11, 1954.
Wayne L. Manweiler and Rick H. Lambie, in November 1953, formed a partnership called 'Arizona Trussless Steel Company' which was set up primarily to build the trussless Wonder Buildings and they are the ones who actually constructed the Dixon building. At the time the Dixon-Feffer contract was entered into the partners were acting as salesmen for Feffer & Sons, not on a salary but on a percentage or commission basis. Defendant Dixon maintained throughout that his dealings were solely with Feffer and that at no time did he have any contractual relations with the partnership of Lambie and Manweiler. The latter were the ones who contacted Richard Cleveland, a concrete contractor who laid the concrete floor and footings.
By appropriate assignments of error defendants' first reliance is upon the legal proposition that a contractor cannot maintain an action for the recovery of compensation allegedly due him unless he was licensed at the time the contract was entered into. As an abstract proposition this is correct. There are, however, statutory exceptions to the rule.
It is admitted that on February 11, 1954--the date the contract in question was entered into--neither the plaintiffs, Feffer and Sons, nor their agents, Lambie and Manweiler, were licensed contractors. It was not until a month later (March 16, 1954) that contractor's licenses were issued to them. Unless the exemptions of law governing contracting, 67-2303, A.C.A.1939 (1952 Cum.Supp.) which was then in effect (now A.R.S. § 32-1121) are controlling here the plaintiffs were not entitled to [84 Ariz. 311] recover and the judgment of the lower court should be reversed. However, it is the contention of plaintiffs that the building in question was constructed incidental to farming and was therefore exempt under the contractors' law, supra. Reliance is
had in part upon Shuey v. Shearman, 77 Ariz. 207, 269 P.2d 607. In that case we held that one who drills a water well to furnish water for agricultural purposes need not be a licensed contractor. Admittedly this decision is not directly in point.
Defendant Dixon purchased high land contiguous to his farming operation for the sole purpose of constructing this granary and feeding pens for use incidental to his entire farming operation. This formed an integral part of such farm operations. The mere fact that in slack years he would utilize the space left vacant by his lack of crops by storing, commercially, grain for his neighbors does not make of this a commercial operation. The statute exempts construction and operation of buildings for use 'incidental' to farming.
We hold, under the facts of this case, that the construction of the building came under this farming exemption and as such the contractor could maintain this action without first having pleaded and proved he was a licensed contractor at the time the contract was entered into. Cf. Fraenkel v. Bank of America, 40 Cal.2d 845, 256 P.2d 569; Fraenkel v. Trescony, 48 Cal.2d 378, 309 P.2d 819.
Plaintiffs' original complaint alleged two causes of action: (1) on an express contract for materials furnished, which included a prayer for a decree foreclosing a materialman's lien thereon and that the liens and claims of defendants other than Dixons be ascertained and adjudged, and (2) an account stated for those materials so furnished and a prayer for the fair and reasonable value in the same sum (i. e. $8,947.83) as was sought in the first cause of action.
Defendants by their answer set forth the defense of a contract for the construction of the building. They denied there was a contract for the furnishing of materials only but stated:
'* * * that under the terms and provisions of said agreement, said plaintiffs promised and agreed to completely construct, erect and complete said building and furnish and supply all materials, equipment, supplies, merchandise, labor and ...