Meridian Corp. v. McGlynn/Garmaker Co. ( 1977 )

CROCKETT, Justice

(dissenting).

It is my opinion that this Court’s decision does not conform to what should be its fundamental purpose: that of administering justice. I spare any extensive elaboration thereon by referring to my dissent in Mosley v. Johnson, 22 Utah 2d 348, 453 P.2d 149, but make the following brief comments.

I have no doubt that where the qualifications for a license involve a high degree of training and skill such as a physician or dentist, so that in the absence of such assurance of skill, there is a substantial risk to health or safety, one who presumes to render such a service without a license should not be able to recover therefor. However, where the service does not require such a high degree of training or skill, such as for example building a car port, putting in a fence or digging a basement, it seems to me manifestly unjust to permit one to accept a benefit and refuse to pay for it, because of some technical deficiency relating to the one who does the work. On the basis of unjust enrichment, the one who receives the benefit should be required to pay its reasonable value and the penalty upon the one rendering the service should be whatever is so prescribed by law.

In this instance, the statute merely provides that one who acts without a license shall be guilty of a misdemeanor. If the legislative intent had been that such contracts were void, the statute should have so declared. My conclusion is that to deny the plaintiff any recompense for the work performed imposes a penalty not provided for by the statute and one which permits the defendants to have an unfair and unjust advantage. As to unjust enrichment see Baugh v. Darley, 112 Utah 1, 184 P.2d 335, 337 (1947).

MAUGHAN, J., concurs in the dissenting opinion of CROCKETT, J. WILKINS, J., having disqualified himself, does not participate herein.