Johnson v. Cass & Emerson

• Citation: 91 Vt. 103,99 A. 633
• Court: United States State Supreme Court of Vermont
• Decision Date: 17 January 1917
• Parties: JOHNSON v. CASS & EMERSON.

99 A. 633

91 Vt. 103

JOHNSON

v. CASS & EMERSON.

Supreme Court of Vermont. Caledonia.

Jan. 17, 1917.

Exceptions from Caledonia Municipal Court; George C. Frye, Judge.

Action by Walter L. Johnson against Cass & Emerson. At the close of the plaintiff's evidence on motion of the defendant, the court dismissed the action for want of jurisdiction as a matter of law, holding that the plaintiff was doing business in the state under a name other than his own, and had never filed the returns and paid the registration fee required by No. 117 of the Acts of 1908, and therefore could not sustain his action. The plaintiff excepted. Reversed and remanded.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Simonds, Searles & Graves, of St. Johnsbury, for plaintiff. Porter, Witters & Harvey, of St. Johnsbury, for defendants.

WATSON, J. This action was brought before the Caledonia county municipal court. The trial was by jury. At the close of the plaintiff's evidence, the court, having found that the plaintiff was doing business in this state under a name other than his own, and it appearing that he had never filed returns and paid registration fee as required by No. 117, Acts 1908, dismissed the action for want of jurisdiction of the process. The plaintiff excepted on several grounds assigned, among which was that the finding was not supported by the evidence.

By sections 1 and 2 of the act of 1908, a person doing business in this state under any name other than his own shall within ten days after the commencement thereof make and file in the clerk's office in the town or city wherein the principal place of business of such person is located, a return setting forth (among other things) the name under which such business is carried on, and the individual name and residence of the person doing business thereunder; and shall also file with the commissioner of state taxes a like return. By section 11, no person subject to this act shall institute any proceedings in this state for the enforcement of any right or obligation, unless he shall, prior to the issuance of the original writ or complaint therein, have filed the returns and paid the registration fee required by this law.

Did the evidence fairly tend to show that the plaintiff "was doing business" under any name other than his own? It appeared that he was engaged in running an employment agency or office at St. Johnsbury, and while so engaged, he at three different times in November, 1915, at defendants' request, sent them men (26 in all) to work in and about their lumber business in or near Johnson, this state. This suit is to recover the amount claimed by the plaintiff to be due him from the defendants for sending to them the workmen mentioned.

The evidence showed that the plaintiff, in carrying on his said business, used only two styles of stationery. One style, his letter heads, had a printed heading at the top as follows: "Johnson's Employment Office, W. L. Johnson, Prop'r." At the upper left-hand corner was printed: "Male and Female Help. Hotel, Restaurant, Mercantile, Farm and Woodmen." At the upper right-hand corner was printed: "Hotel Help a Specialty. Insurance Agency." The other style paper (perhaps it may be considered more as business paper) had a printed heading as follows: "Johnson's Employment Agency, W. L. Johnson, Prop'r." Underneath the foregoing, with a larger space between them, was a printed line: "Reliable help for the business house, factory, hotel and home." These two styles of paper were used by the plaintiff in the business had by him with the defendants concerning which this suit was brought. In connection with this business, the plaintiff took 24 orders from the men he sent to the defendants, for certain sums of money, the amount of which orders severally, according to an understanding between the plaintiff and the defendants, the latter were to withhold from the sum due the several workmen for services, for the benefit of the plaintiff. These orders were made payable, 22 to "the order of W. L. Johnson," and 2 to "the order of Johnson." The plaintiff had no office. He was the janitor of the Globe Theater, at...