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Alexander v. Neal

Supreme Court of Michigan
Sep 23, 1961
110 N.W.2d 797 (Mich. 1961)


Docket No. 53, Calendar No. 48,942.

Decided September 23, 1961.

Appeal from Wayne; Fitzgerald (Neal), J. Submitted June 9, 1961. (Docket No. 53, Calendar No. 48,942.) Decided September 23, 1961.

Assumpsit by Robert II. Alexander, doing business as Alexander Roofing Company, against Donald Neal and Henry P. Rosin for roofing repair services. Declaration dismissed at pretrial. Plaintiff appeals. Affirmed.

Donald G. McHenry, for plaintiff.

Henry P. Rosin, in propria persona, and for defendant Neal.

This is a matter of statutory interpretation. Our State has a statute "to provide for the licensing and rights of any person to engage in business as a residential builder [defined in section 2] or residential maintenance and alteration contractor [also defined in section 2] in certain counties." The plaintiff is characterized by the trial judge as a "residential contractor" and it is not denied that he had not secured a license to so act. The question in the case is whether, lacking such license, he may maintain an action for the cost of a new roof. The trial court held not. "The plaintiff," it was held, "is clearly a member of the class prohibited from acting without a license. * * * The plaintiff's declaration will therefore be dismissed."

PA 1953, No 208 (CLS 1956, § 338.971 et seq. [Stat Ann 1957 Rev § 18.86(1) et seq.]).

The precise provision of the statute with respect to this phase of the case is as follows:

"No person engaged in the business or acting in the capacity of a residential builder and, or residential maintenance and alteration contractor may bring or maintain any action in any court of this State for the collection of compensation for the performance of any act or contract for which a license is required by this act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract."

CLS 1956, § 338.986 (Stat Ann 1957 Rev § 18.86 [16]).

Under the same section of the act, a violator may be subjected, also, to a criminal penalty:

"shall * * * be punished by a fine of not to exceed $500, or by imprisonment in the county jail for a term of not to exceed 6 months, or by both such fine and imprisonment in the discretion of the court."


Statutes and municipal ordinances similar in purport to the above are a commonplace in this country. The police power is thus employed to protect the public from incompetent, inexperienced, and fly-by-night contractors. In the case before us there is no challenge to the constitutionality of the statute, nor to the penalty for its violation here involved, namely, prohibition against action for collection of compensation, a not uncommon provision in such statutes. Even where the statute contains no such express prohibition, the courts frequently deny recovery on the ground that "a contract made in violation of a police statute enacted for public protection is void and there can be no recovery thereon." See, also, Turner v. Schmidt Brewing Co., 278 Mich. 464, an action for work, labor, and materials employed in the execution of a building contract violative of that portion of the liquor control act prohibiting a wholesaler from assisting other vendors financially, wherein we held (syllabus):

E.g., Deering's Cal. Codes, Business and Professions, § 7026 et seq.; 9 McQuillin, Municipal Corpoprations (3d ed, 1950), § 26.109.

For results of defective and improperly installed plumbing see The Outbreak of Amebiasis in Chicago During 1933, by Drs. Bundesen, Tonney, and Rawlings, 102 Journal American Medical Association part 1, p 369 (1934).

F.S. Bowen Electric Co. v. Foley (1952), 194 Va. 92, 100 ( 72 S.E.2d 388, 393).

"One who enters into a contract to perform services or furnish materials in violation of statute which has to do with public health, morals and safety and contains a penal provision for its violation cannot maintain an action to recover for such services or materials."

Here the attack made by appellant may best, perhaps, be expressed in his own statement of the 3 questions he asserts are involved:

"1. Are defendants, the owners of a 26-unit apartment house with 5 stores on the ground floor, entitled to dismissal of a suit for cost of a new roof on the sole ground that PA 1953, No 208 (CLS 1956 § 338.971 et seq. [Stat Ann 1957 Rev § 18.86(1) et seq.]), applies in regard to requiring the roofer to have a residential builder and/or maintenance and alteration contractor's license, where admittedly no such license is required if it be commercial property?"

"2. Where the trial court dismissed the suit on pretrial and denied a rehearing motion, and no facts were alleged in contravention of plaintiff's reply setting forth the property was a 30-unit commercial apartment with 5 stores held by `absentee landlords as commercial investment property and not as residential property,' should, as a matter of law, judgment have been given for defendants, where it was agreed on pretrial this was the only question?"

"3. As a matter of law, on the above facts, should judgment be given for plaintiff?"

Disregarding the argumentative matter in the question put, which should under our rules be reserved for that portion of the brief devoted to "Argument", his propositions, as expressed here and elsewhere, reduce to this: The apartment house in question is not a "home", and since the purpose of the legislation is said to be to protect only the owners of "homesteads" or "personal residences" it has no application to the activities of the contractor before us when he worked on a combination residential and commercial structure. In support of this theory appellant cites various dictionary definitions of the word "home", none of which seems conclusive, since such terms as "the place where one resides", "one's dwelling place", or "the habitual abode of one's family", are generally as applicable to apartments as to homesteads. Moreover, as reference to any standard digest will disclose, the word home, as used in legislation, has many meanings, depending upon the purpose of the act. Thus it may refer "to a particular spot, or to a whole country", to residence or domicile, or, indeed, to a place of business, sometimes described as a "tourist" home. In the act here under consideration the meaning is made clear by the definitions contained in the act itself. The "residential builder" to whom the act refers in its protection of "home" owners is one who is engaged in the construction of either "residential structures or a combination of residential and commercial structures." The "residential maintenance and alteration contractor" is similarly defined as one who undertakes to repair "a residential structure or combination of residential and commercial structure." Thus it is clear from the definitions employed in the act itself that the "home owners" here sought to be protected are not simply the owners of the traditional vine-covered cottages, but comprehend, as well, the owners of today's combined residential and commercial structures.

Court Rule No 67, § 3 (1945), as last amended, 355 Mich xiv.

Langhammer v. Munter (1895), 80 Md. 518, 526 ( 31 A 300, 301, 27 LRA 330).

In re Mullins (1946), 26 Wn.2d 419, 444 ( 174 P.2d 790, 804).

CLS 1956, § 338.972, subd (b) (Stat Ann 1957 Rev § 18.86[2], subd [b]).

CLS 1956, § 338.972, subd (c) (Stat Ann 1957 Rev § 18.86[2], subd [c]).

We find no error. Judgment affirmed. Costs to appellees.


Summaries of

Alexander v. Neal

Supreme Court of Michigan
Sep 23, 1961
110 N.W.2d 797 (Mich. 1961)
Case details for

Alexander v. Neal

Case Details

Full title:ALEXANDER v. NEAL

Court:Supreme Court of Michigan

Date published: Sep 23, 1961


110 N.W.2d 797 (Mich. 1961)
110 N.W.2d 797

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