Brock v. Day

HEDRICK, Judge. In this case there are no genuine issues of material fact regarding defendant Bill Day’s counterclaim. The one question presented on this appeal is whether an unlicensed contractor within the meaning of G.S. § 87-1 may maintain a counterclaim arising out of a construction contract in the owner’s action against the contractor and his wife to recover the balance due on a promissory note which does not relate to the construction contract between the owners and the contractor. Citing Builders Supply v. Midyette, 274 N.C. 264, 162 S.E. 2d 507 (1968), Helms v. Dawkins, 32 N.C. App. 453, 232 S.E. 2d 710 (1977) and Furniture Mart v. Burns, 31 N.C. App. 626, 230 S.E. 2d 609 (1976) the defendants assert: “An unlicensed, contractor can enforce his contract defensively as a set-off, even though it exceeds the statutory maximum, against any claims by the other party to that contract.” The cited cases, among other things, stand for the proposition that an unlicensed contractor may off-set a counterclaim arising out of a construction contract in an owner’s claim based on the same contract, but, in our opinion, he may not maintain a counterclaim in defense of the owner’s claim on a promissory note totally unrelated to the construction contract. To allow an unlicensed contractor to maintain such a counterclaim would violate the public policy manifest in G.S. § 87-1 and articulated in Builders Supply v. Midyette, 274 N.C. 264, 162 S.E. 2d 507 (1968). The facts established by the record in the present case present an absolute and insurmountable legal bar to the defendant Bill Day’s counterclaim. Hence, summary judgment for the plaintiffs on defendant’s counterclaim will be affirmed. [268] Our decision articulated above makes it unnecessary for us to discuss the defendant’s other contentions regarding the counterclaim. We note the defendants do not challenge, except in the context of the counterclaim, summary judgment for the plaintiffs on their claim to collect the balance due on the promissory note. The burden is on the appellants to show error in the judgment on plaintiffs’ claim. This they have failed to do; therefore, summary judgment for the plaintiffs against the defendants in the amount of $17,779.84 will be affirmed. Affirmed. Judges Webb and Becton concur.