Acme Drilling Co. v. Gorman Oil Syndicate

• Decision Date: 02 March 1923
• Parties: ACME DRILLING CO. ET AL. v. GORMAN OIL SYNDICATE ET AL.
• Court: Kentucky Court of Appeals

249 S.W. 1003

198 Ky. 576

ACME DRILLING CO. ET AL. v. GORMAN OIL SYNDICATE ET AL.

Court of Appeals of Kentucky.

March 2, 1923

Rehearing Denied April 27, 1923.

Appeal from Circuit Court, Fayette County.

Action by Charles Hoertz and H. J. Scheirich, doing business under the name of the Acme Drilling Company, and others, against John P. Gorman and Charles Funck, trading under the name of the Gorman Oil Syndicate, and others. Judgment for defendants on sustaining demurrer to the reply and dismissing the petition, and plaintiffs appeal. Reversed.

S. S Yantis, of Lexington, for appellants.

C. F Kelly, of Lexington, for appellees.

MOORMAN J.

Charles Hoertz and H. J. Scheirich, doing business under the name of Acme Drilling Company, filed this suit in the Fayette circuit court against John P. Gorman and Charles Funck, trading under the name of Gorman Oil Syndicate, to recover a judgment of $2,311.75, subject to a credit of $1,511.62, for the drilling of an oil well in Owsley county under a contract entered into by the parties on November 29, 1919. The defendants filed answer, alleging that the service for which plaintiffs sought a recovery was performed in Owsley county, that plaintiffs had failed to file in the office of the clerk of the Owsley county court the certificate required by section 199b of Kentucky Statutes, and had failed to file such a certificate in the county where this action was brought. They alleged that by reason of such failures the contract sued on was void and unenforceable. A demurrer to the answer was overruled and plaintiffs filed a reply, admitting that they had not filed the certificate required by section 199b, Kentucky Statutes, in the office of the clerk of the Owsley county court, but alleging that their principal office and place of business was located in the city of Winchester, Clark county, Ky. that the contract was entered into in the city of Winchester on November 29, 1919, and that before making the contract they had filed in the office of the clerk of the Clark county court a certificate, setting forth the name under which the business was conducted and the true and full names of the persons owning and conducting the business, with their post-office addresses, and in every respect had fully complied with the law. A demurrer to the reply was sustained and the petition dismissed, from which ruling plaintiffs have appealed.

On the facts as affirmatively shown in the reply, the court below held that the contract was voidable under section 199b1 of the Statutes. That section reads:

"No person or persons shall hereafter carry on or conduct or transact business in this state under an assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals, conducting or transacting such business, unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct or transact or intend to conduct or transact such business, a certificate setting forth the name under which said business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons owning, conducting or transacting the same, with the post-office address or addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting, or intending to conduct, said business."

Plaintiffs contend on this appeal: First, that the contract is an executed one; and, second, that the statutory requirement has been complied with, in that the requisite certificate was filed in the county where the transaction occurred.

The first contention rests on Artman Lumber Co. v Bogard, 191 Ky. 392, 230 S.W. 953, in which it was held that section 571 of Kentucky Statutes is inapplicable to executed contracts. The purpose of that statute in respect to corporations is similar to the purposes of section 199b in respect to partnerships conducted under an assumed name; and, if the contract under consideration here were an executed one, we would feel compelled to hold that section 199b does not operate to defeat it. However, it is too clear for argument that the...