Balfour v. Knight

• Decision Date: 19 September 1917
• Parties: BALFOUR ET AL. v. KNIGHT. [*]
• Court: Oregon Supreme Court

167 P. 484

86 Or. 165

BALFOUR ET AL. v. KNIGHT. ^[*]

Supreme Court of Oregon

September 19, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Robert Balfour and others, doing business under the name of Balfour, Guthrie & Co., against Richard B. Knight. Judgment for defendant, and plaintiffs appeal. Affirmed.

On January 7, 1916, plaintiffs filed their complaint in this action wherein they allege that Robert Balfour, Archibald Williamson, John Lawson, W. J. Burns, Alexander Baillie, C.J Williamson, A. W. Blackie, and T. J. Whitson, plaintiffs herein, are copartners, under the firm name of Balfour Guthrie & Co. Paragraph 2 of the complaint reads as follows:

"That said copartners, above named in paragraph 1 hereof, and conducting said business of and having said interest in said Balfour, Guthrie & Co., as aforesaid, did, by one of said copartners, to wit, W. J. Burns, who was then and there a resident copartner and had an interest in and was conducting and intending to conduct said business in said county and state, duly and regularly sign and execute a certain certificate in which there was then and there set forth the name and style under which said copartners were to conduct said business, and the true and real names and post office addresses of such and all of said copartners having an interest in and conducting and intending to conduct said business; that said certificate was duly and regularly executed and acknowledged by said copartner, W J. Burns, before a notary public in and for the state of Oregon, so as to entitle the same to be recorded, and said certificate was filed in the office of the county clerk of Multnomah county, said state, on the 13th day of June 1913, and recorded in Volume 1 of 'Record of Assumed Names,' at page 21 thereof, records of said county and state."

This is followed by allegations to the effect that on April 10, 1913, defendant executed a written guaranty in the following form:

"Balfour, Guthrie & Co., Portland, Oregon, April 10, 1913. To Messrs. Balfour, Guthrie & Co., Board of Trade Bldg., City--Gentlemen: I guarantee payment of all indebtedness which shall be incurred by G. R. Knight, 328 N. 17th Street, City, in your favor for merchandise purchased by him from you any time or times within nine months from the date hereof, provided, however, my liability shall not exceed the sum of twenty-five hundred dollars.

"[Signed] R. B. Knight."

It is alleged that plaintiffs and defendant mutually accepted such guaranty and, relying thereon, plaintiffs sold merchandise to G. R. Knight for which he agreed to pay $1,746.79; that he failed to pay for the same, except the sum of $104.33; that defendant was duly notified of the default of G. R. Knight; and that demand for the payment has been made upon the guarantor, who has refused the same. A prayer for judgment follows.

Defendant answers paragraph 2 of the complaint as follows:

"Answering paragraph 2, defendant admits that W. J. Burns filed in the office of the county clerk of Multnomah county, state of Oregon, on the 30th day of June, 1913, a certain instrument in writing in words and figures as follows: 'Assumed Name of Balfour, Guthrie & Co. I, Walter J. Burns, resident partner of the firm of Balfour, Guthrie & Co., a partnership doing business under the name of Balfour, Guthrie & Co., which business name has been in use for a long time prior to the taking effect of the act of the Legislature of the state of Oregon entitled 'An act regulating the conduct of business under an assumed name,' etc., filed in the office of the secretary of state, February 25, 1913, hereby certify that the following is a list of the persons having an interest in said business, and their addresses: Robert Balfour, London, England; Alexander Baillie, Seattle, Wash.; Archibald Williamson, London, England; C.J. Williamson, Liverpool, England; John Lawson, San Francisco, Cal.; T. J. Whitson, Liverpool, England; W. J. Burns, Portland, Or.'--and that the post office address of the said company is Board of Trade Building, Portland, Or. [ Signed] Walter J. Burns.

"State of Oregon, County of Multnomah--ss.:

"Be it remembered that on this, the 30th day of June, 1913, before me, the undersigned, a notary public in and for the said county and state, personally appeared the above-named Walter J. Burns, who is personally known to me to be the individual described in and who executed the foregoing instrument, and acknowledged to me that he executed the same freely and voluntarily. In testimony whereof I have hereunto set my hand and notarial seal the day and year last above written. [ Signed] John Baikie, Notary Public for the State of Oregon. [ Notarial Seal.]

"Filed June 30th, 1913. John B. Coffey, Clerk; Moore, Deputy."

This is followed by denials of the remainder of the complaint and an affirmative answer which is not necessary to the discussion here. A trial being had, the plaintiffs introduced evidence and rested their case, whereupon defendant moved for a judgment of nonsuit upon several grounds, among which are: (1) The plaintiffs have not proved their compliance with the provisions of chapter 154 of the Laws of Oregon for 1913; (2) that they have not proved any valid contract of guaranty, because the writing does not express the consideration; and (3) that there has been no proof of notice to the guarantor of acceptance of the guaranty by plaintiffs. The trial court allowed the motion for judgment of nonsuit, basing its action upon the last-mentioned ground. Plaintiffs appeal.

Robert R. Rankin, of Portland (D. N. Mackay, of Condon, on the brief), for appellants. John Ditchburn, of Portland (William P. Hubbard, of Portland, on the brief), for respondent.

BENSON, J. (after stating the facts as above).

Section 1 of chapter 154, Laws of 1913, reads thus:

"No person or persons shall hereafter carry on, conduct or transact business in this state under any assumed name or under any designation, name or style, corporate or otherwise, other than the real and true name or names of the person or persons conducting such business or having an interest therein, unless such person or all of such persons conducting said business or having an interest therein, shall file a certificate in the office of the county clerk of the county or counties in which said business is to be conducted, which certificate shall set forth the designation, name or style under which said business is to be conducted, and the true and real name or names of the party or parties conducting or intending to conduct the same, or having an interest therein, together with the post office address or addresses of said person or persons. Such certificate shall be executed and acknowledged by the party or parties conducting, or intending to conduct said business, or having an interest therein, before an officer authorized to take acknowledgment of deeds."

We are of the opinion that this act very clearly demands that the certificate therein prescribed shall be signed and acknowledged by all of the persons interested in the business. The case of Rennie v. Stelter (Mich.) 162 N.W. 997, decided in May of the current year, is relied upon by plaintiffs to oppose this view. This was a case in which the plaintiffs were doing business under the firm name of "Rennie Coal & Supply Company," and the...