Gallafent v. Tucker

• Decision Date: 08 October 1929
• Docket Number: 5322
• Parties: D. M. GALLAFENT, Doing Business as BANNOCK MOTOR COMPANY, Respondent, v. HOWARD A. TUCKER, Appellant
• Court: Idaho Supreme Court

281 P. 375

48 Idaho 240

D. M. GALLAFENT, Doing Business as BANNOCK MOTOR COMPANY, Respondent, v. HOWARD A. TUCKER, Appellant

No. 5322

Supreme Court of Idaho

October 8, 1929

STATUTES - CONSTRUCTION OF - DOING BUSINESS UNDER FICTITIOUS NAMES.

1. In construing statute, legislative intent controls.

2. If in considering subject matter of statute, wrong or evil sought to be remedied or prevented, and purpose sought to be accomplished in enactment, it is manifest that statute was not intended to imply prohibition or to render prohibited act void, courts will so hold and construe statute accordingly.

3. Rule of evidence under Laws 1921, chap. 212, requiring persons transacting business under fictitious name to file certificate, and providing that failure to file certificate shall be prima facie evidence of fraud in securing credit, is applicable only when offending party is sued by one who has given credit.

4. Under Laws 1921, chap. 212, requiring those transacting business under fictitious name to file certificate and disqualifying such persons from bringing suit without filing certificate, failure to file certificate affects only qualification to sue, and upon filing certificate disqualification is removed, and suit or action may be maintained on contract made before or after such filing.

5. Where incompetency of individual, doing business under fictitious name and who had not filed certificate required by Laws 1921, chap. 212, to maintain action was manifest on face of complaint and defendant did not raise objection by demurrer or answer, objection was waived under C. S., sec 6693, providing what objections are waived if not raised by demurrer or answer, since noncompliance with statute is affirmative defense going to plaintiff's capacity to sue.

6. Where provisions of Laws 1921, chap. 212, requiring persons transacting business under fictitious name to file certificate were taken from statute of another state construction placed upon such statute by supreme court of that state, being reasonable, will be accepted.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action on open account and promissory note. From judgment of District Court affirming judgment of Probate Court in favor of plaintiff, defendant appeals. Affirmed.

Judgment affirmed. Costs to respondent.

Witty &amp Anderson, for Appellant.

A contract made in violation of a statute requiring a certificate to be filed before engaging in business, or making the contract, will not warrant a recovery on such contract. (Sess. Laws 1921, chap. 212; Cashin v. Pliter, 168 Mich. 386, Ann. Cas. 1913C, 697, 134 N.W. 482; Miller v. Howell, 184 N.C. 119, 113 S.E. 621; Bristol v. Chas. F. Noble Oil & Gas Co., (Tex. Civ. App.) 273 S.W. 946; Hunter v. Big Four Auto Co., 162 Ky. 778, 173 S.W. 120, L. R. A. 1915D, 987; Horning v. McGill, 188 Ind. 332, 116 N.E. 303.)

B. W. Davis, for Respondent.

The complaint states a cause of action. There can be a good cause of action without the legal capacity to sue. (Valley Lumber Co. v. Driessel, 13 Idaho 662, 13 Ann. Cas. 63, 93 P. 765, 15 L. R. A., N. S., 299; Swope v. Burnham, 6 Okla. 736, 52 P. 924; Fitch v. Braddock, 93 Okla. 78, 219 P. 703; Slaten v. No. 8 Thresher Co., 136 Okla. 298, 277 P. 658.)

VARIAN, J. Budge, C. J., and Givens, T. Bailey Lee and Wm. E. Lee, JJ., concur.

OPINION

VARIAN, J.

Respondent commenced this action in the probate court setting up two causes of action. The complaint alleges "that plaintiff has been and now is doing business as the Bannock Motor Company," at Pocatello, Idaho. The complaint contains the necessary averments to set up a cause of action on an open account and to recover upon a promissory note, but fails to allege a compliance with the provisions of Sess. Laws 1921, chap. 212. Appellant was regularly served with process, but failed to appear in the probate court, where judgment was entered by default on February 24, 1928. On March 26, 1928, he appealed to the district court upon questions of law, where the judgment was affirmed. Thereafter he prosecuted this appeal.

The statute referred to is as follows:

"Section 1. That no person or persons shall hereafter carry on, conduct or transact business in this state under any assumed or fictitious name, or under any designation, name or style, partnership, or otherwise, other than the true and real name or names of the person or persons conducting or transacting such business or having an interest therein, unless such person or all of such persons conducting or transacting said business, or having an interest therein, shall file in the office of the recorder of the county or counties in which said business is to be conducted or transacted, a certificate which shall set forth the designation, name, or style, under which said business is to be conducted or transacted and the true or real full name or names of the party or parties conducting, or transacting or intending to conduct or transact 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 transacting, or intending to conduct or transact, said business or having an interest therein, before an officer authorized to take acknowledgments of deeds.

"Sec. 2. Any person or persons now conducting or transacting any business under any such assumed or fictitious name, or under any designation, name or style other than the true and real full name or names of all the parties having an interest therein, shall file a certificate as provided for in Section 1 thereof, within thirty days after this act shall take effect, and persons hereafter conducting, transacting, or intending to conduct or transact any business, as set forth in Section 1 above, shall, before commencing business, file such a certificate in the manner hereinbefore prescribed.

"Sec. 3. Whenever any business is being conducted or transacted under any assumed or fictitious name, or under any designation, name or style other than the true and real full name or names of all the parties having an interest therein, and there shall be any change in the ownership or interest therein, then the party or parties who are to conduct or transact such business or having an interest therein, after such change and interest, shall file a certificate as provided in Section 1 hereof, before conducting or transacting any business whatsoever.

"Sec. 4. This act shall in no way affect or apply to any corporation, duly organized under the laws of this state, or to any corporation organized under the laws of another state and lawfully doing business in this state, nor shall this act be deemed or construed to prevent the lawful use of a partnership designation, name, or style; provided, that such partnership designation, name, or style shall include the true and real name or names of all the parties conducting such business or having an interest therein.

"Sec. 5. The several county recorders of the state, shall keep an alphabetical index of all persons filing certificates, provided for herein, and for the indexing and filing of such certificate they shall receive a fee of fifty cents. A copy of such certificate, duly certified to by the county recorder in whose office the same shall be filed, shall be prima facie evidence in all courts of law in this state of the facts therein stated.

"Sec. 6. No person or persons carrying on, conducting, or transacting business as aforesaid, or having any interest therein, shall hereafter be entitled to maintain any suit in any of the courts of this state without alleging and proving that such person or persons have filed a certificate as provided for in Section 1 hereof, and failure to file such certificate, shall be prima facie evidence of fraud in securing credit.

"Sec. 7. Any person or persons carrying on, conducting, or transacting business, as aforesaid, who shall fail to comply with the provisions of this act, shall be guilty of a misdemeanor and upon conviction shall be subject to a fine of not less than twenty-five dollars nor more than two hundred dollars."

Appellant contends that, respondent having failed "to allege" compliance with the statute, the probate court was without jurisdiction to enter any judgment, and that the contracts sued upon are void.

The act under consideration is nearly identical with the Oregon statute, enacted in 1913. (See General Laws of Oregon 1913, chap. 154, p. 270; Olson's Oregon Laws, secs. 7777 to 7782, incl.) The Washington statute conforms to Oregon and Idaho in every particular, except that there is no penalty clause, although the title of the act refers to a penalty (Wash. Sess. Laws 1907, chap. 145, p. 288; Rem. Comp. Stats. of Washington, secs. 9976-9980, incl.) It will be noted that the Oregon and Idaho statutes do not expressly make an agreement void because of the penalty imposed.

The rule of interpretation to be followed is that the question is one of legislative intent, "and the courts will look to the language of the statute, the subject matter of it, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment; and if from all these it is manifest that it was not intended to imply a prohibition or to render the prohibited act void, the courts will so hold and will construe the statute accordingly." (13 C. J., p. 422. See Uhlmann v. Kin Daw, 97 Ore. 681, 193 P. 435; Carland v. Heckler, 233 F. 504, 147 C. C. A. 390; Ashley & Rumelin v. Brady, 41 Idaho 160, 238 P. 314.)

As the decision of the supreme court of Oregon points out, it is not the primary purpose of this statute to prevent...