Eklund v. Elwell , 116 Utah 521 ( 1949 )

This is an appeal by the defendant from a judgment rendered against him, and in favor of plaintiff, for the furnishing of material and labor in installing certain electric wiring and equipment in a gas station of defendant's in Ogden, Utah.

The negotiations for this job were conducted by and in the name of the Empey Electric Company through one H.B. Empey; and defendant contends that he was not at any time, dealing with plaintiff and did not know plaintiff in the matter at all; and that a part of the agreed price for the work included an offset of a sum due defendant from said H.B. Empey. He claims further that the account was transferred to this plaintiff to defeat his alleged offset.

The lower court awarded judgment for plaintiff and subsequently modified his award by allowing an offset in favor of defendant. There are other details to the case not material here.

Neither the pleadings nor the findings of fact include any statement that plaintiff nor Empey was licensed as a contractor by the State of Utah, as required by Section 79-5a-1, U.C.A. 1943 which reads:

"It shall be unlawful for any person, firm, copartnership, corporation, association, or other organization, or any combination of any thereof, to engage in the business or act in the capacity of contractor within this state without having a license therefor as herein provided, unless such person, firm, copartnership, corporation, association, or other organization is particularly exempted as provided in this act."

Recently this court has had occasion to pass upon the necessity of such a license and held, Olsen v. Reese,114 Utah 411, 200 P.2d 733, that the possession of such a license is a necessary allegation in the pleadings; and that such a contract entered into without a license is void.

Defendant demurred to plaintiff's complaint as not stating a cause of action. The demurrer should have been sustained. Plaintiff, however, contends that this error in the complaint was not called to the attention of the lower court, but was raised for the first time in this court. Quite aside from the fact that a failure to state a cause of action is an objection that may be raised at any time, the findings of fact on their face show the judgment is void for lack of a finding that plaintiff has such a license, and the testimony in the case is to the effect that plaintiff did not have a license.

Plaintiff contends that Empey as his agent had a license, but, under plaintiff's theory, Empey was not the responsible party, the contractor; and such fact, if true, would not relieve the contractor from the requirements of the statute.

We are of the opinion that the case cited above is decisive of this case. The judgment of the lower court is reversed and the cause remanded with directions to the lower court to dismiss the action.

Costs to appellant.

WADE and McDONOUGH, JJ., concur.