Whitson

In this action on a book account and an account stated, plaintiff appeals from an adverse judgment rendered by the court sitting without a jury.

Plaintiff is a licensed excavating, grading and paving contractor. His brother, Ralph A. Rogers, is plaintiff’s superintendent. Defendant Dr. Claude S. Whitson, sued herein as Sam Whitson, is the owner of the Jo Lin Arabian Horse Ranch properties (hereafter referred to as Jo Lin Ranch) approximately one-third of which was being subdivided during the latter part of 1958. At all times herein material, Dr. Whitson’s brother James Whitson was his business manager and personal agent and as such was in charge of the subdivision project. James Whitson was not a licensed contractor.

In August or September 1958, while plaintiff was doing certain highway construction work in Contra Costa County, he employed for a short period of time one Thomas Dolan, also named as a defendant herein, as a “dozer” operator. Ralph Rogers testified that Dolan returned during the first part of October 1958 and told the witness “that he had a job and they needed dozers on that job, would I be interested in renting out dozers to him, to his company where he was…