Holland v. Walden , 11 N.C. App. 281 ( 1971 )

181 S.E.2d 197 (1971) 11 N.C. App. 281

Ruth M. HOLLAND
v.
Sam C. WALDEN (also known as Samuel C. Walden) and wife, Dianna S. Walden.

No. 7126SC39.

Court of Appeals of North Carolina.

May 26, 1971. Certiorari Denied July 30, 1971.

Harkey, Faggart, Coira & Fletcher, by Henry L. Harkey, Harry E. Faggart, Jr., and Francis M. Fletcher, Jr., Charlotte, for plaintiff appellant.

Ruff, Perry, Bond, Cobb & Wade, by James O. Cobb, Charlotte, for defendant appellees.

Certiorari Denied by Supreme Court July 30, 1971.

PARKER, Judge.

By contracting with defendants and undertaking to construct a house for them at the agreed price of $67,500.00, plaintiff became a "general contractor" and engaged in the business of general contracting in this State within the definition contained in G.S. § 87-1. Thereby she became subject to the licensing provisions of G.S. § 87-10. Unless she substantially complied with those provisions, she may not recover against defendants either on her contract or upon quantum meruit. Bryan Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507; Ar-Con Construction Co. v. Anderson, 5 N.C.App. 12, 168 S.E.2d 18. It is our opinion, however, that the factual situation presented in the present case is sufficiently different from the situations which were presented in Bryan Builders Supply v. Midyette and in Ar-Con Construction Co. v. Anderson, supra, as to require that we distinguish it. In our opinion the plaintiff in the present case, in the course of performing her contract with defendants, did substantially comply with the licensing requirements of the statute so that she is entitled to maintain her action upon the contract.

In Bryan Builders Supply v. Midyette, supra, the plaintiff stipulated that at all times pertinent to the litigation it was not licensed to construct buildings where the cost was $20,000.00 or more. In Ar-Con Construction Co. v. Anderson, supra, the parties also stipulated that while the plaintiff had previously held a limited license as a general contractor, this license had expired some months before the contract was entered into and was not renewed after its expiration. Thus, each of those cases presented a situation in which the party who acted as a general contractor was unlicensed not only at the time the contract was entered into but at all times thereafter while undertaking to perform under it. Under those circumstances the Supreme Court in Bryan Builders Supply v. Midyette, supra, and this Court in following that decision in Ar-Con Construction Co. v. Anderson, supra, held that the unlicensed contractor could not maintain its action.

In the present case plaintiff was not licensed when the contract was entered into on or about 15 March 1967 nor when she commenced construction of the house shortly after 5 May 1967. She did, however, receive a valid limited general contractor's license on 12 July 1967 which entitled her under G.S. § 87-10 to engage in general contracting in this State with respect to any single project of a value not in excess of $75,000.00. She continued to hold this license until and after 31 January 1969, when she ceased work on the house. Thus, she did hold a valid license for eighteen and one-half months out of the total of approximately twenty-one months during which she was engaged in constructing defendants' house. For 88 percent of the construction time, during which the major portion of the construction work was performed, she was duly licensed. For such portion of the work as she did perform prior to 12 July 1967 while she was unlicensed, she has already been paid. As pointed out in the opinion in Bryan Builders Supply v. Midyette, supra, the purpose of Article 1 of Chapter 87 of the General Statutes is to protect the public from incompetent builders. We do not see how that purpose would be promoted by denying the plaintiff under the circumstances of this case the right to maintain her action on the contract here sued upon.

We note that if the cost of the "extras," which amounted to $8,520.35, is added to the basic contract price of $67,500.00, the result may be that the building "project" had a value slightly in excess of $75,000.00, while plaintiff, as holder of a limited license, was not entitled to engage in the practice of general contracting "with respect to any single project of a value in excess of seventy-five thousand dollars ($75,000.00)." G.S. § 87-10. The trial judge concluded that the record before him on the motions for summary judgment was not sufficiently clear for the court to determine this matter and expressly declined to base his determination upon that point. We agree that the record was not sufficiently clear to permit the court in ruling on a motion for summary judgment to determine whether defendants' house with the "extras" was or was not "a single project of a value in excess of seventy-five thousand dollars," within the meaning of G.S. § 87-10. On this record we do not reach the questions whether the "extras" could or should be considered as separate projects, or as new contracts, or as renegotiations and renewals of the original contract. We note, however, that even if it should be determined that the "project" with the "extras" added was a single project having a value in excess of $75,000.00, Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101, which was one of the cases cited and relied upon in the opinion in Bryan Builders Supply v. Midyette, supra, is authority supporting plaintiff's right to recover at least upon a quantum meruit for work done on the contract up to the time that changes, made at the request of defendants, resulted in the project having a value in excess of the limitations of plaintiff's license.

The summary judgment sustaining defendants' plea in bar and dismissing plaintiff's action is reversed and this cause is remanded.

Reversed and remanded.

MALLARD, C. J., and VAUGHN, J., concur.