Hunt v. Douglas Lumber Co. , 41 Ariz. 276 ( 1933 )

If this were an action by the contractor, Estes, against the owner, Hunt, for a balance due under his contract, and to impress a lien therefor on the building constructed under the contract, it would present for our determination the interesting question whether Estes, he not having obtained a contractor's license under chapter 102, Laws of 1931, could recover, because said chapter provides not only that contractors such as Estes shall obtain a license, but also provides a punishment by fine or imprisonment, or both, for "any person . . . acting in the capacity of contractor . . . without a license." (Section 12.)

If the action were between the contractor and owner, the constitutionality of chapter 102 might also be involved. The action is not between the contractor and the owner, and, therefore, any ruling on the constitutionality of the law or on the validity of the contract, as between the owner and the contractor, is beside the question.

This is an action by a materialman (the Douglas Lumber Company) for the reasonable value of the materials furnished at the request of the contractor, Estes, and put into the owner's building, and to impress the building with a lien therefor. It is not an action to recover of the owner. It is not based upon contract with the owner. It is a right created by the statute in favor of laborers and materialmen who have performed labor or furnished material for the building at the instance of the owner or his agent. Harbridge v. Six Points Lumber Co., 17 Ariz. 339,152 P. 860. Section 2020 of the Revised Code of 1928 makes "every contractor, sub-contractor, architect, builder or other person having charge or control of the construction, alteration, or repair, either in whole or in part, of any building, structure or improvement . . . the agent of the owner for the purposes of this article," and further makes the owner liable for the reasonable value of labor and materials furnished to such agent. The contractor, Estes, was therefore the agent of the owner in ordering the materials from the plaintiff lumber company. The fact that Estes had failed to obtain a license under chapter 102 before entering into the contract with the owner did not make him any the less a contractor and the agent of the owner. True, he might not, not having obtained a license, be able to collect the contract price, or any part thereof, from the owner; but he was nevertheless a contractor and the agent of the owner in ordering the materials. His inability to collect for his services, if it existed, did not destroy his character as a contractor. If he was not a "contractor," then he was not subject to the terms of chapter 102, supra, requiring a license. But the majority opinion says he was a "contractor" under such chapter. It is dead certain that he was not a trespasser. He was on the owner's premises with his consent constructing the building under a contract and was therefore the owner's agent.

The law provides that "any person desiring to practice as an architect" shall register and makes it a misdemeanor for him to practice his profession without complying with such law. Section 2499 et seq., Rev. Code 1928. Section 2020, supra, makes an architect in charge or control of any construction, alteration or repair the agent of the owner. Suppose a case where the architect had not registered with the state board of registration. Under the reasoning of the majority opinion it would be just too bad for a materialman or laborer to furnish material or labor at his request, because he is not, what he and everybody else thinks he is, an "architect," not having registered, and therefore incapacitated to act as the owner's agent.

There is no statute or law that I know of that would defeat the lien of a materialman or laborer if he knew when furnishing materials or performing labor that the contract between the owner and the contractor was for any reason void or unenforceable as between them. If his labor or material enters into the building or structure at the instance of the owner or his agent, the law says, in plain and unmistakable language, that he is entitled to a lien thereon for its reasonable value; and to make his rights dependent upon the validity of the building contract, or the rights of the contractor and owner as between themselves, is doing something that the law does not even squint at, much less authorize. I can imagine the legislature's amazement, as also that of the bar, when told that the law regulating and licensing contractors has modified or changed the mechanics' lien law.

The doctrine of estoppel has no place in this case. Nobody was misled or deceived. The plaintiff did not furnish the materials that went into the owner's building because of anything said to it by the owner nor because of the owner's silence when he should have spoken. It is said the plaintiff did not know that the contractor had no license under chapter 102. It can be said with equal truth and propriety that the owner, so far as the record shows, had no notice or knowledge that the contractor had no license. The plaintiff did not know what the contract between the owner and the contractor provided, and it is not necessary that it should have known. If the building cost more than the contract price, or if the owner paid the whole contract price to the contractor, nevertheless under the law the materialman and the laborer may impress the property with a lien for any sum due them, but not on the ground of estoppel. The contractor may not apply a dollar of the contract price paid to him by the owner towards liquidating the labor and material account, but that does not affect the rights of the laborer and materialman to a lien. The contractor may have taken the contract for twenty-five or fifty per cent. of the cost of the structure but that will not defeat the mechanics' liens. The owner is liable under the law for the reasonable value of the materials furnished for his building and the reasonable value of the labor performed on it, even though far in excess of the contract price, because the statute says so and not on any theory of estoppel.

I concur in the result of the majority opinion but cannot follow the reasons given to sustain it. I regret that it contains any expression weakening, or tending to weaken or undermine the mechanics' lien law.