Green v. Nelson

• Decision Date: 19 June 1951
• Docket Number: No. 7491,7491
• Citation: Green v. Nelson, 120 Utah 155, 232 P.2d 776 (Utah 1951)
• Parties: GREEN et al. v. NELSON.
• Court: Utah Supreme Court

Page 776

232 P.2d 776

120 Utah 155

GREEN et al. v.NELSON.

No. 7491.

Supreme Court of Utah.

June 19, 1951.

Hammond & Hammond, Price, for appellant.

Mitchell Melich, Moab, for respondent.

WOLFE, Chief Justice.

Action by the appellants to recover the sum of $190 allegedly due them under a correspondence school agreement which they entered into with the respondent.The trial court entered judgment in favor of the appellants for nominal damages only and from that judgment they prosecute this appeal.A cross-appeal by the respondent is also taken from the judgment below.

In December, 1945, the respondent entered into an 'enrollment contract' with the appellants whereby he agreed to pay $225 for certain tractor and equipment training to be furnished him by the appellants.The first $75 of the $225 fee to be paid by the respondent was specified in the contract as a 'registration fee.'He made a payment of $5 at the time the contract was executed and agreed to pay the balance in monthly installments of $15.So far as is pertinent here, the contract specifically provided:

'I have read this agreement and acknowledge receipt of an exact copy of same, which is our entire agreement, and I understand that the service, to which I am entitled is that which is expressed herein, and that no modification or representation, except as herein expressed in writing, will be recognized and no reduction in fees will be made in case of withdrawal.In the event of any one payment becoming delinquent sixty days, without written consent of the Interstate Training Service, the unpaid balance becomes immediately due and payable.

'This Agreement, when accepted by Interstate Training Service at Portland, Oregon, is not subject to revocation.All correspondence, inquiries, payments on balance and matters relating to this training shall be made and directed to Interstate Training Service, Weatherly Building, Portland 14, Oregon.'

On the reverse side of the contract was a diagram illustrating the content of the training to be furnished the respondent and also an enumeration of four services which he was entitled to receive: (1) revision service for two years to keep abreast of new developments in the tractor and equipment field, (2) consultation with an instructor at any time, (3) lesson material, tests, return envelopes, etc., (4) placement service after completion of course.

Pursuant to the contract, the respondent paid $30 in addition to the down payment of $5.After the payment of said amount and the receipt of six lessons, he refused to accept any more lessons or to make further payments and repudiated the contract.Thereupon, this action was commenced by the appellant to recover $190, the unpaid balance of the $225 fee.

To the complaint, the respondent demurred on the ground that it failed to allege that at the time the appellants entered into the contract with him they had complied with the provisions of section 58-2-1, Utah Code Annotated, 1943.That section provides: 'No person or persons shall carry on or conduct or transact business in this state under an assumed name, or under any designation, name or style, corporate, partnership 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 county clerk of the county in which the principal place of business is, or is to be, located, an affidavit setting forth the name under which such business is, or is to be, conducted or transacted, and the true full name or names of the person or persons owning, conducting or transacting the same, the location of the principal place of business, with the post office address or addresses of such person or persons.Such affidavit shall be executed by the person or persons so conducting or intending to conduct such business.'

Section 58-2-4, U.C.A.1943, makes the violation of the above section a misdemeanor.The respondent's demurrer was overruled by the trial court and the case proceeded to trial on its merits.After finding that the appellants had offered no evidence of the value of the services they had furnished the respondent nor of the profit they would have made had he not repudiated the contract, the court entered a judgment against him for nominal damages only in the amount of $1.

Considering first the cross-appeal of the respondent, it is contended by him that the lower court erred in overruling his demurrer to the appellants' complaint and in refusing to rule that the contract was void and unenforceable because at the time it was entered into between the parties, the appellants had not filed an affidavit of the nature required by section 58-2-1, U.C.A. 1943.Whether the appellants filed such an affidavit subsequent to the time the contract was entered into and before this action was tried does not appear from the record.For the purposes of this case, we will assume that they did not.

The cross-appeal must fail.The appellants are co-partners doing business as the Interstate Training Service with their principal place of business in the Weatherly Building in Portland, Oregon.In negotiating for the contract, the respondent dealt with the appellants' agent, one C. M. Hamaker.After the respondent agreed to enter into the agreement, it had to be accepted by the appellants at their office in Portland before becoming binding upon them.It is not alleged nor does it appear from the record that the appellants maintain any place of business whatsoever in the State of Utah.In view of these facts, it is evident that section 58-2-1, U.C.A.1943, can have no application to the appellants.That section provides that no person shall conduct a business in this state under an assumed name unless he files with the clerk of the county 'in which the principal place of business is, or is to be, located' an affidavit setting forth the true full name and address of the person conducting the business and the location of the principal place of business.The statute does not purport to apply to persons such as the appellants, conducting business in this state under an assumed name but having no place of business within the state.It would be impossible for such persons to comply with the terms of statute.A case strikingly similar to the instant case in regards to this question is Swope v. Burnham, 6 Okl. 736, 52 P. 924, 926.There the plaintiffs, co-partners, conducting a mercantile business with its sole place of business in Kansas City, Missouri, carried on business in Oklahoma from their Kansas City headquarters by taking orders through their agents or receiving them through the mail from purchasers directly.In an action brought by the plaintiffs in Oklahoma to recover the possession of a stock of goods, the defendant contended that they had no right to maintain their action because they had not complied with an Oklahoma statute requiring every partnership conducting business in the territory of Oklahoma under a fictitious name to file with the clerk of the district court of the county in which its principal place of business is located, a certificate setting forth the true names of all members of the partnership and their places of residence, and to publish the certificate for four weeks in a newspaper published in that county.It was further provided by statute that any partnership doing business without filing and publishing the required certificate could not maintain any action on account of partnership contracts.It was held by the court that the statute did not apply to a non-resident partnership having no place of business in the territory, although the partnership may do business in Oklahoma, conducting it entirely from an outside location.The court stated that the requirement that the partnership file the required certificate with the clerk of the district court of the county in which its principal place of business is located 'would seem to us to mean that the partnerships which the legislature had in mind when enacting this section were those which had an establishment, a place of business, or one or more places of business, in this territory, for there could be no 'principal place of business' if there was not some place of business, and it certainly was not intended that the 'principal place of business' should be stated in the certificate, if one did not exist in fact.The section does not require that a partnership doing business here shall have a place of business in the territory, as some statutes in principle like this do; but the requirement is that the certificate must be filed in the county where the principal place of business is stated in the certificate to be.'As to the purpose of the statute, the court further remarked:

'The chief purpose of such a statute would seem to be to inform parties doing business with a partnership of pursons with whom they were dealing, so as to facilitate action and recovery in case of injury, and it is difficult to perceive the efficacy of such a certificate and publication to promote the purpose of the act, where there is neither person nor property in the territory to serve or seize * * *.At all events, this language requiring the certificate to be filed, and the publication to be made * * * in the county 'in which its principal place of business is [located]' is in this section, and either makes it mean that the certificate must be filed, and the publication made, whether the partnership has a place of business in the territory or not, as counsel for the plaintiff in error contend, which would nullify this cause of the section; or to mean that every such partnership must have a place of business in the territory, which would be adding to it a most important requirement; or to mean, as we believe and construe it, that every such partnership which has a place of business in this territory must file this certificate in the county of its principal place of...