« AnteriorContinuar »
being the sole person interested in a busi- cover the amount alleged to be due on a ness, adopts a business or trade name under promissory note and on an open account which the business is conducted.
for supplies purchased by defendant from Name right to assume.
plaintiff. Reversed. 2. A person, being the sole owner and
The facts are stated in the Commismanager of a business, has, in the absence sioner's opinion. of a statute to the contrary, the right to
Mr. C. F. Chapman, for plaintiff in erassume any name under which he chooses to conduct his business, so long as such business is conducted under such name
Without abandoning his real name, a perin good faith, and may maintain an action son may adopt any name, style, or signafor breach of contracts made under such ture wholly different from his own name, business name.
by which he may transact business, exe
cute contracts, issue negotiable papers, and (December 8, 1914.)
sue and be sued.
29 Cyc. 270; Carlisle v. People's Bank, RROR to the County Court for Creek 122 Ala. 446, 26 So. 115; Pease v. Pease, 35
fendant's favor in an action brought to re- ' Eiszner, 28 Ill. App. 269; Re Pelican Ins. Note. Right of individual to change no actual partner, as affected by statutes
to transact business and regulating the use of partnership names, are make contracts under an assumed also excluded.
A distinction should be observed between
the right of an individual to make a comI. Scope, 982. II. Right to change name.
plete change of name and transact business a. At common law, 982.
under an adopted name by which he is genb. As affected by statutes providing erally known, and the right, without such for change of name by judicial
a change, to adopt an additional name for business purposes.
The courts, however, proceedings, 983. III. Assumption of business name, 983.
have generally not made a distinction, and, reasoning from the doctrine that one has a
right to change his name and adopt any I. Scope.
name he sees fit, which as a general proposiThe earlier cases on this question will be tion is well established, have held that he found in subdivisions (pages 692, 693) of can assume an additional name under which a note to Laflin & R. Powder Co. v. Steytler, he may transact business and make valid 14 L.R.A. 690, on the acquisition and use contracts. A distinction should be observed by an individual of a name.
also between the right of an individual to As to use of fictitious name as affecting enforce a contract entered into by him unvalidity of instrument, see note to Wiehl v. der an assumed name and his liability thereRobertson, 39 L.R.A. 423.
on, but, in many of the cases of the latter And as to validity of contracts made by sort, the language and reasoning of the individual or partnership under as-court would lead to the conclusion that the sumed name, in violation of a statute re right to enforce the contract would also quiring the filing or publishing of the true have been upheld. The cases in general name, see note to Hunter v. Patterson, post, support the conclusion reached in ROBINO987.
VITZ v. HAMILL. The question as to when a negotiable instrument is deemed payable to the order II. Right to change name. of a fictitious person, within the rule which regards such an instrument as payable to
a. At common law. bearer, is treated in a note to Seaboard Nat. Bank v. Bank of America, 22 L.R.A. Supplementing note in 14 L.R.A. 692. (N.S.) 499.
As stated in the earlier note on this ques. This note does not include the question tion (14 L.R.A. 692), it seems that a man as to the name under which an individual may change either his Christian or surname may sue or be sued (see notes in 14 L.R.A. as radically and as often as he desires, if 693, and 2 L.R.A.(N.S.) 1089); nor does it for an honest purpose, and without injury include cases dealing merely with the ques to third persons. tion of the right of an individual to trans- "It is well established that a man may act business and make contracts under a lawfully change his name without resorting fictitious or business name as affected by to legal proceedings, and for all purposes the right of other persons to the exclusive the name thus assumed by him will constiuse of the name (see Index to L.R.A. Notes, tute his legal name, just as much as if he Names, ss 17-19, and the title “Trade had borne it from birth; and legal proceednames"). Cases passing upon the questionings instituted against him under the asof the right of an individual to add to his sumed name will bind him and those claimown name for business purposes the words ing under him." Christianson v, King "and Co." "and Company," or other part. County, 196 Fed. 791, affirmed in 122 C. c. nership designation, when in fact there is | A. 188, 203 Fed. 894.
Co. 47 La. Ann. 935, 17 So. 427; Sparks v. 16 Daly, 441, 12 N. Y. Supp. 455; RosenDespatch Transfer Co. 104 Mo. 531, 12 heim v. Rosenfield, 37 N. Y. S. R. 551, 13 L.R.A. 714, 24 Am. St. Rep. 351, 15 S. W. N. Y. Supp. 720; Blake v. Barnes, 26 Abb. 417; England v. New York Pub. Co. 8 Daly, N. C. 215, 12 N. Y. Supp. 69; Martino v. 375; Snook's Petition, 2 Hilt. 566; Rich v. Kirk, 55 Hun, 474, 8 N. Y. Supp. 758; Delvin Mayer, 26 N. Y. S. R. 107, 7 N. Y. Supp. 69; v. Peek, 135 Fed. 167; Lauferty v. Wheeler, Linton v. First Nat. Bank, 10 Fed. 894. 11 Daly, 194; 1 Bates, Partn. 205; Kent
Plaintiff, in doing business under the v. Mojonier, 36 La. Ann. 259; 30 Cyc. name of the Producers Supply Company, is 420; Wolfe v. Joubert, 45 La. Ann. 1100, not doing business in violation of the let. 21 L.R.A. 772, 13 So. 806; Sinnott v. ter of the statute in question.
German-American Bank, 164 N. Y. 386, Leader Printing Co. v. Lowry, 9 Okla. 58 N. E. 286, affirming 33 App. Div. 641, 89, 59 Pac. 242; Gay v. Seibold, 97 N. Y. | 54 N. Y. Supp. 1110; Zimmerman 472, 49 Am. Rep. 533; Bull's Head Bank v. Erhard, 83 N. Y. 74, 38 Am. Rep. 396, McFeeters, 9 Jones & S. 218; Swords v. affirming 8 Daly, 311, 58 How. Pr. 11; Owen, 43 How. Pr. 176, 2 Jones & S. 277; Wood v. Erie R. Co. 72 N. Y. 196, Caswell v. Hazard, 121 N. Y. 496, 18 Am. 28 Am. Rep. 125, affirming 9 Hun, 648; St. Rep. 833, 24 N. E. 707; Barron v. Yost, ' Pollard v. Brady, 16 Jones & S. 476; Bau
A person has the right to adopt any name, fied in the order of the court for the change he sees fit. Delaney v. Gaylord, 131 N. Y. to take effect, the applicant shall "be known Supp. 890.
by the name which is thereby authorized to “A man may change his name at will, and be assumed, and by no other name,” and sue or be sued in any name in which he is that it might well be, therefore, that after known and recognized.
So, a per a man has acquired a name by judicial deson may adopt any name in which to prose cree, he cannot acquire another without recute business, and may sue or be sued in sorting to the courts. See, to a similar such a name.” Emery v. Kipp, 154 Cal. 83, effect, Smith v. United States Casualty Co. 19 L.R.A. (N.S.) 983, 129 Am. St. Rep. 141, supra. 97 Pac. 17, 16 Ann. Cas. 792. Supporting the right of an individual at
III. Assumption of business name. common law to change his name in good See also cases in note in 14 L.R.A. 693. faith without resort to formal proceedings
It is the established rule that in business for that purpose, and to adopt a new name matters a contract may be entered into by a under which he may transact business and person by any name he may choose to asmake valid contracts, are also the following sume; all the law looks to is the identity cases: Milbra v. Sloss-Sheffield Steel & 1. of the individual. Scanlan v. Grimmer, 71 Co. 182 Ala. 622, 46 L.R.A. (N.S.) 274, 62 Minn. 351, 70 Am. St. Rep. 326, 74 N. W. So. 176; Shain v. DuJardin, 4 Cal. Unrep. 146. 905, 38 Pac. 529; Loser v. Plainfield Sav. So, in White v. Hartman, Colo. App. Bank, 149 Iowa, 672, 31 L.R.A.(N.S.) 1112, 145 Pac. 716, it was said that “a per128 N. W. 1101; Coplin v. Woodmen of the son may adopt or assume ar
in World, 105 Miss. 115, 62 So. 7; Smith v. which he prefers to do business, or may conUnited States Casualty Co. 197 N. Y. 420, summate any individual transaction in any 26 L.R.A.(N.S.) 1167, 90 N. E. 947, 18 Ann. name he may adopt, and will thereafter be Cas. 701; Re Burstein, 69 Misc. 41, 124 N. responsible in the assumed name.” Y. Supp. 989; Roberts v. Mosier, 35 Okla. "It is a general principle of law that 691, 132 Pac. 678, Ann. Cas. 19140, 423; one in the transaction of business may use Mutual Ben. L. Ins. Co. v. Cummings, 66 Or. a purely artificial name, assume the 272, 47 L.R.A. (N.S.) 252, 126 Pac. 982, 133 proper name of some other natural person, Pac. 1169; Re McUlta, 189 Fed. 250. and the person who thus adopts a fictitious
name or who uses the name of the other perB. As affected by statutes providing for son will be held liable on the contracts, where
change of name by judicial proceed the evidence clearly shows that the name is ings.
artificial, or that the name of the other
person was used without his authority, The earlier cases on this question will be and that only the party using it is interfound in a note to Smith v. United States ested in the transaction of the business Casualty Co. 26 L.R.A.(N.S.) 1167.
and in the contract so made.” Tuggle v. The conclusion reached in the cases cited in Bank of Cave Spring, 8 Ga. App. 291, 68 that note, that statutes providing a mode of | S. E. 1070. In this case the administratrix changing one's name do not abrogate, but of one who signed a note in a name other are in affirmance and aid of, the common than his own was held liable in an action law, is supported by the later cases of Re on the note as the individual contract of Burstein, 69 Misc. 41, 124 N. Y. Supp. 989, the intestate, the name signed being that of and Re McUlta, 189 Fed. 250.
another person who had not authorized the In Re Burstein, supra, the court intimat- signature. ed, however, that in one respect the statute And in Roberts v. Mosier, 35 Okla. 691, might limit the common-law right in that 132 Pac. 678, Ann. Cas. 1914D, 423, it was it provides that on and after the day speci. I said (syllabus) that “a contract or obliga
mann v. De Logerot, 58 N. Y. S. R. 151, 26 | not support an action in behalf of the N. Y. Supp. 986.
plaintiff against the defendant. Messrs. Thompson & Smith, for defend- Huston v. Scott, 20 Okla. 142, 35 L.R.A. ant in error:
(N.S.) 721, 94 Pac. 512; Light v. Conover, Plaintiff is doing business in violation 10 Okla. 732, 63 Pac. 966; Bass v. Smith, of the statute making it a misdemeanor to / 12 Okla. 485, 71 Pac. 628; Watt v. Amos, do business under a fictitious partnership 14 Okla. 178, 79 Pac. 109; Williams v.
Steinmetz, 16 Okla. 104, 82 Pac. 986; Jack
v. Baker, 48 Or. 155, 85 Pac. 512; Bradley Fertilizer Co. v. South Pub. Co.
Atchison, T. & S. F. R. Co. v. Holmes, 180 4 Misc. 172, 23 N. Y. Supp. 675; Mattox v.
Okla. 92, 90 Pac. 22; McLaughlin v. ArdState, 115 Ga. 212, 41 S. E. 709; Leader
more Loan & T. Co. 21 Okla. 173, 95 Pac. Printing Co. v. Lowry, 9 Okla. 89, 59 Pac.
779. 242; Palmer v. Pinkham, 33 Me. 32; People v. Strauss, 97 I. App. 47; Kilbourn
Harrison, C., filed the following opinion: City v. Southern Wisconsin Power Co. 149
Max Robinovitz was engaged in the busiWis. 168, 135 N. W. 499.
ness of furnishing supplies for oil wells and The note and account are void and will' well drilling outfits under the name of the tion may be entered into by a person by that the defendant had assumed a certain any name he may choose to assume. The name as its business name would doubtless law only looks to the identity of the indi- be impaired by the fact that the business vidual, and when that is clearly established, name employed was not a purely artificial the act, when free from fraud, will be bind- one, as is usual in such cases, but the name ing."
of a natural person who, in the eye of the "It is true if one signs and delivers a law, was competent to contract on his own contract in the name of a fictitious person, account; but that "in principle there is no or a real person whom he assumes to be, difference between assuming a purely artihe will be held liable on such contract.” | ficial name by which to transact business, Radley v. Meeks, 178 Mo. App. 238, 165 S. and assuming the proper name of some other W. 1192, holding, however, that in this in- natural person; only this, that in the latter stance the defendant had not assumed a case, the proof ought to be very clear to fictitious name.
show that the contract was not designed to In holding that an individual cannot be a personal contract of such natural peravoid liability on a contract entered into son.” under an assumed name, the court in Preiss As to the length of time the party must v. Le Poidevin, 19 Abb. N. C. 123, 9 N. Y. have used the assumed name, it was said S. R. 695, said: “The courts have held that in Preiss v. Le Poidevin, supra: “Does any a person can have two names. Can one con length of time have to transpire before the tract with another under a name she repre person contracting under the name he sents to be her name, and then avoid lia chooses and by which he introduces himself bility on the contract when her identity is to the other contracting party is obligated unquestioned, by claiming that the name by the terms of the contract? We hardly she held out to be her own was not the name believe the courts are called upon to deal in by which she was best known to the world? | such refinement, if by so doing solemn conAdmitting that she was known by the as- tracts are avoided and great wrong worked.” sumed name to the contracting party by her It was conceded in Sheridan v. Nation, own representation to him, we think the 159 Mo. 27, 59 S. W. 972, that an individual name under which she contracted was her may do business in any name he chooses, name for the purpose of the contract, and the contention being that when such a party she is estopped from denying or repudiating institutes a suit, it must be brought in his the same for the purpose of relieving her real name, a point not within the scope of self from the obligations of the contract and the note. covenants made by her under such name. "If an individual assume a name for the There is nothing so sacred in a name that purpose of making a written contract, and right and justice should be sacrificed to its put that name to the contract with a view sanctity. There is nothing in the law pro- to bind himself, there seems to be no reahibiting one from taking another name if son why courts should not consider the he desires, and contracting under the name name thus assumed as his name pro hac he may choose to assume.
rice, and hold him to fulfil the contract. To a similar effect are Pease v. Pease, 35 And it must now be considered as settled Conn. 131, 95 Am. Dec. 225, and Gotthelf that he is bound by such a contract." Grafv. Shapiro, 136 App. Div. 1, 120 N. Y. Supp. ton Bank v. Flanders, 4 N. H. 239. See 210, subsequent proceedings in 146 App. also David v. Williamsburgh City F. Ins. Div. 918, 131 N. Y. Supp. 1117, and 210 N. Co. 83 N. Y. 265, 38 Am. Rep. 418. Y. 538, 103 N. E. 1124, holding also that The validity of an assignment made by the principle is not affected by the fact that an individual under a fictitious business there is a living person who bears the as- name was upheld in William Gilligan Co. v. sumed name. In Pease v. Pease, supra, the Casey, 205 Mass. 26, 91 N. E. 124, as against court said that the weight of the evidence an attaching creditor who had given credit
Producers' Supply Company. The defendant| mination of the question whether a person owed plaintiff $125 on a promissory note can conduct a mercantile business under an and $30.63 on an open account for supplies assumed name without violating § 2444, purchased by defendant from plaintiff, and Comp. Laws 1909, and whether he can all of which defendant refused to pay. maintain an action for breach of contract Plaintiff sued defendant on the note and made under such assumed name without account. At the close of the testimony de having first complied with § 5023 and g fendant moved to dismiss plaintiff's action 5025, Comp. Laws 1909. on the ground that plaintiff was doing busi- Section 5023, Comp. Laws 1909 (8 4469, ness under a fictitious name, to wit, the Rev. Laws 1910), is as follows: “Except Producers' Supply Company, and, not hav- as otherwise provided in the next section, ing complied with g 5023 and § 5025, Comp. every partnership transacting business in Laws 1909, he could not maintain an action, this state under a fictitious name, or a and on the further ground that the con- designation not showing the names of the tract, being made in violation of g 2444, persons interested as partners in such busiComp. Laws 1909, was null and void. The ness, must file with the clerk of the discourt sustained the motion to dismiss, and trict court of the county or subdivision in the cause comes here on appeal for deter-' which its principal place of business is to the party individually in ignorance ap-1 longer or shorter period, as the case may be, parently of the fact that he was also doing his business in that way. But is length of business under an assumed name. In this time in the use thereof the measure of its instance one Casey, a contractor, was doing efficacy in binding him who uses such a business under the name, “Bay State Con- business name? McMeekin v. Furry, 39 tracting Company, Thomas Hurley, Presi. Can. S. C. 378. In this case it was held dent,” and under that name made a con- that an agreement entered into by Leopold tract with a city for construction work. Boscowitz in the name of "J. Boscowitz & There was in fact no such corporation, the Sons” was binding on the maker, although contractor being the only person interested it does not appear but that the transaction in the business, and having in his employ | in question was the only instance of the use a foreman named Thomas Hurley. The con- of the firm name. tractor individually, and without disclosure Where James Derby was carrying on busiof the assumed name, purchased materials ness under the name of “New England from the plaintiff, who it was held had no Steam & Gas Pipe Company” (a company right to money due the contractor from the by this name having been incorporated, but city as against a third party to whom the never organized or engaged in business), and debt had been assigned in good faith for a note was given for a debt contracted with advances to a larger amount, although the him under this name, payable to the comassignment was in the fictitious business pany, it was held in Bryant v. Eastman, 7
Cush. 111, that if the name was assumed The contention was overruled in William in good faith, the note should be treated as Gilligan Co. v. Casey, supra, that there payable to Derby, and he could transfer a could be no valid assignment which would legal title by an indorsement in his own be good against attaching creditors, unless name. The court said there was certainly the assignment was made and recorded by an inconvenience in an individual carrying the assignor in his own name, or, if in on business by a name or description other another name under which he was doing than his own, but it was not prepared to business, unless that name was one under say that this was illegal. which he was equally as well known as by C. M. Leonard may do business and make his individual name; and the law was de valid contracts under the name of “Leonard clared to be that a person or corporation Construction Co. not Inc.," if the name is may assume or be known by different names assumed in good faith. Leonard v. Howard, and contract accordingly; that contracts so 67 Or. 203, 135 Pac. 549. In this instance entered into will be valid and binding if un- the action was brought by C. M. Leonard, affected by fraud; and that the validity, so doing business as the Leonard Construction far as third persons are concerned, of con Company, for the breach of a contract tracts entered into by a person or corpora entered into under the assumed name, and tion under a name other than his proper the court said that, aside from statutory name, does not depend upon whether he is provisions, there was nothing to prohibit as well known by that name as by his true a person from transacting business under name, but whether as to the particular any name or style he saw fit. transaction the name is used in good faith M. J. Gill, who assumes for business purby the party adopting it as a descriptio poses the name of M. J. Gill Construction persona.
Company, and under that name enters into “Assuming a firm name, though in fact contracts, may be sued on the contracts unit represents only one man, is much too der the assumed name. National Surety Co. common a device in use for business pur- v. Oklahoma Presby. College, 38 Okla. 429, poses to say that a man cannot be bound 132 Pac. 652. by any such name he chooses to adopt. “A person may adopt and use,
as inUsually the man doing so carries on for aldicative of his negotiable and other con
stated, a certificate, stating the names in name of a person as a partner who is not full of all the members of such partner interested in his firm, or transacting busiship, and their places of residence, and pub- ness under a firm name in which the desiglish the same once a week for four suc. nation ‘and Company,' or '& Co.' is used cessive weeks, in a newspaper published in without representing an actual partner exthe county, if there be one, and if there cept in the cases in which the continued use be none in such county, then in a news- of a copartnership name is authorized by paper published in an adjoining county." law, is guilty of a misdemeanor.”
Section 5025, Comp. Laws 1909 (8 4471, It is contended by defendant in error, in Rev. Laws 1910), reads: “The certificate support of the action of the trial court in filed with the clerk of the district court pro- dismissing the plaintiff's suit, that plainvided in § 5023, must be signed by the tiff, by doing business under the assumed partners and acknowledged before some offi- name Producers' Supply Company, without cer authorized to take acknowledgments of first having filed the certificate and made conveyances of real property. Persons do- the publication required under $ 5023, suing business as partners, contrary to the pra, was precluded under $5025, supra, provisions of this article, shall not maintain from maintaining an action; and also that any action on or on account of any con- having conducted his business under an tracts made or transactions had in their assumed name in violation of g 2444, supra, partnership name in any court of this state the contract was void and the plaintiff until they have first filed the certificate and guilty of a misdemeanor. Neither of these made the publication herein required: Pro- contentions be sustained, because vided, however, that if such partners shall neither of the provisions of statute, supra. at any time comply with the provisions of are applicable to the facts in the case at this article, then such partnership shall bar. Robinovitz alleged in his petition, and have the right to maintain an action in all testified on the stand, that he was the such partnership
transactions. owner and proprietor of the business; that
no one else was interested in it; that he Section 2444, Comp. Laws 1909, under owned and controlled the Producers' Supthe topic, “Fictitious copartnership,” reads: ply Company, and that such name “Every person transacting business in the prised him and none other; that defendant tracts, a business name or style entirely dif- , identity. Morris v. State, 144 Ala. 81, 39 ferent from his own proper name, and when So. 973, holding that the statute was a he, by himself or a general agent, enters valid exercise of the police power of the into a negotiable or other contract under state, and did not violate a constitutional such adopted business name, he will be provision prohibiting imprisonment for bound by such contract as effectually as debt. though it had been entered into and executed And in Illinois the wrongful use of a corunder his own proper name and signature. porate name by an individual is prohibited 'In such case the adopted name is equivalent by a statute providing that any company, in law to the actual name of the party.'”' association, or person putting forth any Union Brewing Co. v. Inter-State Bank & sign or advertisement, and therein assumT. Co. 240 III. 454, 88 N. E. 997, where the ing, for the purpose of soliciting business, individual was the sole owner of an unin
a corporate name, without being incorpocorporated “People's Savings Bank,” this rated, shall be subject to a fine. Among fact, however, being known to the other par possibly other cases construing and applyties in the suit.
ing the statute are Kantsky v. Atwood, 79 And the right of an individual to trans- Ill
. 204; People ex rel. Power v. Rose, 219 act business under an assumed name was Ill. 46, 76 N. E. 42; Edgerton v. Preston, 15 recognized in Carlisle v. People's Bank, 122 Ill. App. 23; Imperial Mfg. Co. v. Schwartz, Ala. 446, 26 So. 115, where it was alleged | 105 Ill. App. 525; First Nat. Bank v. Cox, that a certain person was doing business un. 140 Ill. App. 98; Turnes v. Johnson, 179 der the name of “The People's Bank," and Ill. App. 32; People v. Carp, 180 ml. App. the court said that if this was true the legal | 673. title under a mortgage made to the bank An attorney at law cannot justify the vested in the individual.
practice of his profession under the name In some states the transacting of business of a firm which was composed of two memunder a fictitious name or under an as bers, one of whom is dead and the other sumed name, without filing a certificate set suspended from practice, on the ground that ting forth the true name or names, is pro- he has complied with a statute making it a hibited by statute. See cases in note to misdemeanor to transact business under an Hunter v. Patterson, post, 902, cited supra. assumed name without filing the required
In Alabama a statute prohibits under certificate, the statute having no applicapenalty any person from changing or alter: tion to such a case. Re Kaffenburgh, 115 ing his name except in the manner provided App. Div. 346, 101 N. Y. Supp. 507, affirmed by law, with the intent to defraud or avoid in 188 N. Y. 49, 80 N. E, 570. the payment of any debt or to conceal his
R. E. H.