Courtney v. Parker

• Decision Date: 09 May 1917
• Docket Number: (No. 423.)
• Citation: 92 S.E. 324
• Court: North Carolina Supreme Court
• Parties: COURTNEY. v. PARKER et al.

(173 N.C. 479)

92 S.E. 324

COURTNEY.

v.PARKER et al.

(No. 423.)

Supreme Court of North Carolina.

May 9, 1917.

Appeal from Superior Court, Anson County; J. L. Webb, Judge.

Action by W. R. Courtney, trading and doing business as the Wadesboro Marble Works, against J. A. Parker and the Carolina Country Club. From a judgment dismissing the action, plaintiff appeals. Affirmed.

The action was to recover a balance due for building material supplied to defendant pursuant to a contract made in the course of plaintiff's business, W. R. Courtney, and conducted by him under the name and style of the Wadesboro Marble Works, " and without having registered the true name of plaintiff as owner of the business, as required by Daws 1913, c. 77. Plaintiff having admitted in open court that he had so conducted the business without having complied with the statute, the court entered judgment dismissing the action for that reason, and plaintiff excepted.

Brock & Henry, of Wadesboro, for appellant.

Robinson, Caudle & Pruette, of Wadesboro, for appellees.

HOKE, J. The statute in question (Laws 1913, c. 77) in general terms provides that:

"No person or persons shall * * * carry on, conduct or transact business in this State under assumed name, or under any designation, name or style other than the real name * * * of the individual or individuals owning, conducting or transacting such business, unless such person * * * shall file, in the office of the clerk of the superior court of the county or counties in which such person or persons own, conduct or transact or intend to own. conduct or transact such business, or maintain an office or place of business, a certificate setting forth the name under which such business * * * is to be conducted, " etc., "and the true or * * * 'full name or names of the person or persons owning, conducting or transacting the same, with the home and P. O. address * * * of said person or persons."

Such certificate shall be executed and duly acknowledged, and the clerk is required to keep an alphabetical index of the same and a certified copy is made presumptive evidence of the facts.

Section 4 provides that any person or persons owning, carrying on, conducting, or transacting business aforesaid who shall fail to comply with provisions of this act shall be guilty of a misdemeanor, and, on conviction, shall be punished by a fine of not more than $50, or imprisonment in the county jail not more than 30 days, Exceptions are made by the statute, not pertinent to the present inquiry, in cases of salesmen or traveling agents, etc., selling by samples or by means of orders, of corporation, domestic or foreign, and of limited partnership organized pursuant to the laws of the state.

It is well established that no recovery can be had on a contract forbidden by the positive law of the state, and the principle prevails as a general rule whether it is forbidden in express terms or by implication arising from the fact that the transaction in question has-been made an indictable offense or subjected to the imposition of a penalty. Lloyd v. Railroad, 151 N. C. 536-540, 66 S.E. 604, 45 L. R. A. (N. S.) 378; Edwards v. Goldsboro, 141 N. C. 60, 53 S. E. 652, 4 L. R. A. (N. S.) 5S9, 8 Ann. Cas. 479; Puckett v. Alexander, 102 N. C. 95, 8 S. E. 767, 3 L. R. A. 43; Warden v. Plummer, 49 N. C. 524; Sharp v. Farmer, 20 N. C. 255. In reference to an avoidance of a contract by reason of an implied prohibition, it is the rule very generally enforced that recovery is denied to the offending party when the transaction in question is in violation of a statute establishing a general police regulation to "safeguard the public health or morals or to protect the general public from fraud or imposition." This was held in a recent case of the Supreme Court of Michigan on a statute very similar to ours in Cashin v. Pliter, 168 Mich. 386, 134 N. W. 482, Ann. Cas. 1913C, 697, and the position is approved by many well-considered decisions of other courts. Levinson v. Boas, 150 Cal. 185, 88 Pac. 825, 12 L. R. A. (N. S.) 575, 11 Ann. Cas. 661; McConnel v. Kitchens, 20 S. C. 430, 47 Am. Rep. 845; Taliaferro v. Moffett, 54 Ga. 150; Pinney v. Nat. Bank, 68 Kan. 223, 75.Pac. 119, 1 Ann. Cas. 331; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671; Deaton v. Lawson, 40...